ARTICLE II Cases

G.R. No. L-63915 April 24, 1985

LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR

BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in Section
6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners
seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in
the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations,
executive orders, letter of implementation and administrative orders.

Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200,
234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404,
406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574,
594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961,
1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278,
1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-
1847.

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153,
155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224,
226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-
289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358,
362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498,
501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642,
665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-
1178,1180-1278.

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529,
1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-
1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-
1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800,
1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836,
1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870,
 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984,
1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507,
509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-
568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-
786, 788-852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81,
92, 94, 95, 107, 120, 122, 123.

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The view is
submitted that in the absence of any showing that petitioners are personally and directly affected or
prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners
are without the requisite legal personality to institute this mandamus proceeding, they are not being
"aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:

SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person

unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully excludes another from the
use a rd enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court alleging the facts
with certainty and praying that judgment be rendered commanding the defendant,
immediately or at some other specified time, to do the act required to be done to
Protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant.

Upon the other hand, petitioners maintain that since the subject of the petition concerns a public
right and its object is to compel the performance of a public duty, they need not show any specific
interest for their petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a
private individual only in those cases where he has some private or particular interest to be subserved, or
some particular right to be protected, independent of that which he holds with the public at large," and "it
is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell
vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted need not show that he has any
legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested
in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to compel the Governor General to call a special
election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:
 We are therefore of the opinion that the weight of authority supports the proposition
that the relator is a proper party to proceedings of this character when a public right
is sought to be enforced. If the general rule in America were otherwise, we think that
it would not be applicable to the case at bar for the reason 'that it is always
dangerous to apply a general rule to a particular case without keeping in mind the
reason for the rule, because, if under the particular circumstances the reason for the
rule does not exist, the rule itself is not applicable and reliance upon the rule may
well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by
counsel for the respondent. The circumstances which surround this case are different
from those in the United States, inasmuch as if the relator is not a proper party to
these proceedings no other person could be, as we have seen that it is not the duty
of the law officer of the Government to appear and represent the people in cases of
this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced
by petitioners herein is a public right recognized by no less than the fundamental law of the land. If
petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of
any other person to initiate the same, considering that the Solicitor General, the government officer
generally empowered to represent the people, has entered his appearance for respondents in this
case.

Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question contain special provisions
as to the date they are to take effect, publication in the Official Gazette is not indispensable for their
effectivity. The point stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said article. In a
long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those
cases where the legislation itself does not provide for its effectivity date-for then the date of publication is
material for determining its date of effectivity, which is the fifteenth day following its publication-but not
when the law itself provides for the date when it goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws
with the fact of publication. Considered in the light of other statutes applicable to the issue at hand,
the conclusion is easily reached that said Article 2 does not preclude the requirement of publication
in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important legisiative
acts and resolutions of a public nature of the, Congress of the Philippines; [2] all
executive and administrative orders and proclamations, except such as have no
general applicability; [3] decisions or abstracts of decisions of the Supreme Court
and the Court of Appeals as may be deemed by said courts of sufficient importance
to be so published; [4] such documents or classes of documents as may be required
so to be published by law; and [5] such documents or classes of documents as the
 President of the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat."
It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a
law of which he had no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansaand for the diligent ones, ready
access to the legislative recordsno such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno
en uso de su potestad. 5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative
duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.

The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to particular persons or class of
persons such as administrative and executive orders need not be published on the assumption that
they have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound
by law, he must first be officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC 7:

In a time of proliferating decrees, orders and letters of instructions which all form part
of the law of the land, the requirement of due process and the Rule of Law demand
that the Official Gazette as the official government repository promulgate and publish
the texts of all such decrees, orders and instructions so that the people may know
where to obtain their official and specific contents.

The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or
implemented prior to their publication. The answer is all too familiar. In similar situations in the past
this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District
vs. Baxter Bank 8 to wit:

The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative, conferring
no rights and imposing no duties, and hence affording no basis for the challenged
decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v.
Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as
to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The effect of the subsequent
ruling as to invalidity may have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights claimed to have become
vested, of status, of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions are among the most
difficult of those which have engaged the attention of courts, state and federal and it
is manifest from numerous decisions that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the

Official Gazette is "an operative fact which may have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos.
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the
subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But
whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been
implemented or enforced by the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon
Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and
make the said penalties binding on the persons affected thereby. " The cogency of this holding is
apparently recognized by respondent officials considering the manifestation in their comment that "the
government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall
have been published in the Official Gazette or in some other publication, even though some criminal laws
provide that they shall take effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so published, they
shall have no binding force and effect.

SO ORDERED.
G.R. No. 80718 January 29, 1988

FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners,

vs.
COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS
OF MARISSA BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS BERNAL,
SR., respondents.

RESOLUTION

CORTES, J.:

This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special
First Division of the Court of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy,
et al., CA-G.R. CV No. 07286. The first resolution promulgated on 30 September 1987 denied
petitioners' motion for extension of time to file a motion for reconsideration and directed entry of
judgment since the decision in said case had become final; and the second Resolution dated 27
October 1987 denied petitioners' motion for reconsideration for having been filed out of time.

At the outset, this Court could have denied the petition outright for not being verified as required by
Rule 65 section 1 of the Rules of Court. However, even if the instant petition did not suffer from this
defect, this Court, on procedural and substantive grounds, would still resolve to deny it.

The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners
collapsed and destroyed the tailoring shop occupied by the family of private respondents, resulting in
injuries to private respondents and the death of Marissa Bernal, a daughter. Private respondents had
been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the
former failed to do so. On the basis of the foregoing facts, the Regional Trial Court. First Judicial
Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen, rendered judgment finding
petitioners guilty of gross negligence and awarding damages to private respondents. On appeal, the
decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on
August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9,
1987, the last day of the fifteen-day period to file an appeal, petitioners filed a motion for extension of
time to file a motion for reconsideration, which was eventually denied by the appellate court in the
Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September
24, 1987 but this was denied in the Resolution of October 27, 1987.

This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied
petitioners' motion for extension of time to file a motion for reconsideration, directed entry of
judgment and denied their motion for reconsideration. It correctly applied the rule laid down
in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the
fifteen-day period for appealing or for filing a motion for reconsideration cannot be extended. In its
Resolution denying the motion for reconsideration, promulgated on July 30, 1986 (142 SCRA 208),
this Court en banc restated and clarified the rule, to wit:

Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that
no motion for extension of time to file a motion for reconsideration may be filed with the Metropolitan
or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a
motion may be filed only in cases pending with the Supreme Court as the court of last resort, which
may in its sound discretion either grant or deny the extension requested. (at p. 212)

Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 73146-
53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and clarify the
modes and periods of appeal.

Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA 161],stressed
the prospective application of said rule, and explained the operation of the grace period, to wit:

In other words, there is a one-month grace period from the promulgation on May 30,
1986 of the Court's Resolution in the clarificatory Habaluyas case, or up to June 30,
1986, within which the rule barring extensions of time to file motions for new trial or
reconsideration is, as yet, not strictly enforceable.

Since petitioners herein filed their motion for extension on February 27, 1986, it is still
within the grace period, which expired on June 30, 1986, and may still be allowed.

This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669,
October 28, 1986, 145 SCRA 306].]

In the instant case, however, petitioners' motion for extension of time was filed on September 9,
1987, more than a year after the expiration of the grace period on June 30, 1986. Hence, it is no
longer within the coverage of the grace period. Considering the length of time from the expiration of
the grace period to the promulgation of the decision of the Court of Appeals on August 25, 1987,
petitioners cannot seek refuge in the ignorance of their counsel regarding said rule for their failure to
file a motion for reconsideration within the reglementary period.

Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to
the case at bar owing to the non-publication of the Habaluyas decision in the Official Gazette as of
the time the subject decision of the Court of Appeals was promulgated. Contrary to petitioners' view,
there is no law requiring the publication of Supreme Court decisions in the Official Gazette before
they can be binding and as a condition to their becoming effective. It is the bounden duty of counsel
as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where
issues have been clarified, consistently reiterated, and published in the advance reports of Supreme
Court decisions (G. R. s) and in such publications as the Supreme Court Reports Annotated (SCRA)
and law journals.

This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in
affirming the trial court's decision holding petitioner liable under Article 2190 of the Civil Code, which
provides that "the proprietor of a building or structure is responsible for the damage resulting from its
total or partial collapse, if it should be due to the lack of necessary repairs.

Nor was there error in rejecting petitioners argument that private respondents had the "last clear
chance" to avoid the accident if only they heeded the. warning to vacate the tailoring shop and ,
therefore, petitioners prior negligence should be disregarded, since the doctrine of "last clear
chance," which has been applied to vehicular accidents, is inapplicable to this case.

WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of
merit.
G.R. No. L-6791 March 29, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
QUE PO LAY, defendant-appellant.

Prudencio de Guzman for appellant.

First Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Lauro G. Marquez for appellee.

MONTEMAYOR, J.:

Que Po Lay is appealing from the decision of the Court of First Instance of Manila, finding him guilty
of violating Central Bank Circular No. 20 in connection with section 34 of Republic Act No. 265, and
sentencing him to suffer six months imprisonment, to pay a fine of P1,000 with subsidiary
imprisonment in case of insolvency, and to pay the costs.

The charge was that the appellant who was in possession of foreign exchange consisting of U.S.
dollars, U.S. checks and U.S. money orders amounting to about $7,000 failed to sell the same to the
Central Bank through its agents within one day following the receipt of such foreign exchange as
required by Circular No. 20. the appeal is based on the claim that said circular No. 20 was not
published in the Official Gazette prior to the act or omission imputed to the appellant, and that
consequently, said circular had no force and effect. It is contended that Commonwealth Act. No., 638
and Act 2930 both require said circular to be published in the Official Gazette, it being an order or
notice of general applicability. The Solicitor General answering this contention says that
Commonwealth Act. No. 638 and 2930 do not require the publication in the Official Gazette of said
circular issued for the implementation of a law in order to have force and effect.

We agree with the Solicitor General that the laws in question do not require the publication of the
circulars, regulations and notices therein mentioned in order to become binding and effective. All that
said two laws provide is that laws, resolutions, decisions of the Supreme Court and Court of
Appeals, notices and documents required by law to be of no force and effect. In other words, said
two Acts merely enumerate and make a list of what should be published in the Official Gazette,
presumably, for the guidance of the different branches of the Government issuing same, and of the
Bureau of Printing.

However, section 11 of the Revised Administrative Code provides that statutes passed by Congress
shall, in the absence of special provision, take effect at the beginning of the fifteenth day after the
completion of the publication of the statute in the Official Gazette. Article 2 of the new Civil Code
(Republic Act No. 386) equally provides that laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided. It is true that
Circular No. 20 of the Central Bank is not a statute or law but being issued for the implementation of
the law authorizing its issuance, it has the force and effect of law according to settled jurisprudence.
(See U.S. vs. Tupasi Molina, 29 Phil., 119 and authorities cited therein.) Moreover, as a rule,
circulars and regulations especially like the Circular No. 20 of the Central Bank in question which
prescribes a penalty for its violation should be published before becoming effective, this, on the
general principle and theory that before the public is bound by its contents, especially its penal
provisions, a law, regulation or circular must first be published and the people officially and
specifically informed of said contents and its penalties.

Our Old Civil code, ( Spanish Civil Code of 1889) has a similar provision about the effectivity of laws,
(Article 1 thereof), namely, that laws shall be binding twenty days after their promulgation, and that
their promulgation shall be understood as made on the day of the termination of the publication of
the laws in the Gazette. Manresa, commenting on this article is of the opinion that the word "laws"
include regulations and circulars issued in accordance with the same. He says:

El Tribunal Supremo, ha interpretado el articulo 1. del codigo Civil en Sentencia de 22 de

Junio de 1910, en el sentido de que bajo la denominacion generica de leyes, se
comprenden tambien los Reglamentos, Reales decretos, Instrucciones, Circulares y Reales
ordenes dictadas de conformidad con las mismas por el Gobierno en uso de su potestad.
Tambien el poder ejecutivo lo ha venido entendiendo asi, como lo prueba el hecho de que
muchas de sus disposiciones contienen la advertencia de que empiezan a regir el mismo dia
de su publicacion en la Gaceta, advertencia que seria perfectamente inutil si no fuera de
aplicacion al caso el articulo 1.o del Codigo Civil. (Manresa, Codigo Civil Espaol, Vol. I. p.
52).

In the present case, although circular No. 20 of the Central Bank was issued in the year 1949, it was
not published until November 1951, that is, about 3 months after appellant's conviction of its
violation. It is clear that said circular, particularly its penal provision, did not have any legal effect and
bound no one until its publication in the Official Gazzette or after November 1951. In other words,
appellant could not be held liable for its violation, for it was not binding at the time he was found to
have failed to sell the foreign exchange in his possession thereof.

But the Solicitor General also contends that this question of non-publication of the Circular is being
raised for the first time on appeal in this Court, which cannot be done by appellant. Ordinarily, one
may raise on appeal any question of law or fact that has been raised in the court below and which is
within the issues made by the parties in their pleadings. (Section 19, Rule 48 of the Rules of Court).
But the question of non-publication is fundamental and decisive. If as a matter of fact Circular No. 20
had not been published as required by law before its violation, then in the eyes of the law there was
no such circular to be violated and consequently appellant committed no violation of the circular or
committed any offense, and the trial court may be said to have had no jurisdiction. This question may
be raised at any stage of the proceeding whether or not raised in the court below.

In view of the foregoing, we reverse the decision appealed from and acquit the appellant, with
costs de oficio.

G.R. No. 176006 March 26, 2010

NATIONAL POWER CORPORATION, Petitioner,

vs.
PINATUBO COMMERCIAL, represented by ALFREDO A. DY, Respondent.

DECISION

CORONA, J.:
The National Power Corporation (NPC)1 questions the decision dated June 30, 2006 rendered by the
Regional Trial Court (RTC) of Mandaluyong City, Branch 213 declaring items 3 and 3.1 of NPC
Circular No. 99-75 unconstitutional. The dispositive portion of the decision provides:

WHEREFORE then, in view of the foregoing, judgment is hereby rendered declaring item[s] 3 and
3.1 of NAPOCOR Circular No. 99-75, which [allow] only partnerships or corporations that

directly use aluminum as the raw material in producing finished products either purely or partly out of
aluminum, to participate in the bidding for the disposal of ACSR wires as unconstitutional for being
violative of substantial due process and the equal protection clause of the Constitution as well as for
restraining competitive free trade and commerce.

The claim for attorneys fees is denied for lack of merit.

No costs.

SO ORDERED.2

NPC also assails the RTC resolution dated November 20, 2006 denying its motion for
reconsideration for lack of merit.3

In this petition, NPC poses the sole issue for our review:

WHETHER OR NOT THE RTC GRAVELY ERRED WHEN IT DECLARED ITEMS 3 AND 3.1 OF
NAPOCOR CIRCULAR NO. 99-75 AS UNCONSTITUTIONAL FOR BEING VIOLATIVE OF
SUBSTANTIAL DUE PROCESS AND THE EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION AS WELL AS FOR RESTRAINING COMPETITIVE FREE TRADE AND
COMMERCE.4

NPC Circular No. 99-755 dated October 8, 1999 set the guidelines in the "disposal of scrap
aluminum conductor steel-reinforced or ACSRs in order to decongest and maintain good
housekeeping in NPC installations and to generate additional income for NPC." Items 3 and 3.1 of
the circular provide:

3. QUALIFIED BIDDERS

3.1 Qualified bidders envisioned in this circular are partnerships or corporations that directly use
aluminum as the raw material in producing finished products either purely or partly out of aluminum,
or their duly appointed representatives. These bidders may be based locally or overseas. 6

In April 2003, NPC published an invitation for the pre-qualification of bidders for the public sale of its
scrap ACSR7cables. Respondent Pinatubo Commercial, a trader of scrap materials such as copper,
aluminum, steel and other ferrous and non-ferrous materials, submitted a pre-qualification form to
NPC. Pinatubo, however, was informed in a letter dated April 29, 2003 that its application for pre-
qualification had been denied.8 Petitioner asked for reconsideration but NPC denied it. 9

Pinatubo then filed a petition in the RTC for the annulment of NPC Circular No. 99-75, with a prayer
for the issuance of a temporary restraining order and/or writ of preliminary injunction. 10 Pinatubo
argued that the circular was unconstitutional as it violated the due process and equal protection
clauses of the Constitution, and ran counter to the government policy of competitive public bidding. 11
The RTC upheld Pinatubos position and declared items 3 and 3.1 of the circular unconstitutional.
The RTC ruled that it was violative of substantive due process because, while it created rights in
favor of third parties, the circular had not been published. It also pronounced that the circular
violated the equal protection clause since it favored manufacturers and processors of aluminum
scrap vis--vis dealers/traders in the purchase of aluminum ACSR cables from NPC. Lastly, the RTC
found that the circular denied traders the right to exercise their business and restrained free
competition inasmuch as it allowed only a certain sector to participate in the bidding. 12

In this petition, NPC insists that there was no need to publish the circular since it was not of general
application. It was addressed only to particular persons or class of persons, namely the disposal
committees, heads of offices, regional and all other officials involved in the disposition of ACSRs.
NPC also contends that there was a substantial distinction between manufacturers and traders of
aluminum scrap materials specially viewed in the light of RA 7832. 13 According to NPC, by limiting
the prospective bidders to manufacturers, it could easily monitor the market of its scrap ACSRs.
There was rampant fencing of stolen NPC wires. NPC likewise maintains that traders were not
prohibited from participating in the pre-qualification as long as they had a tie-up with a
manufacturer.14

The questions that need to be resolved in this case are:

(1) whether NPC Circular No. 99-75 must be published; and

(2) whether items 3 and 3.1 of NPC Circular No. 99-75 -

(a) violated the equal protection clause of the Constitution and

(b) restrained free trade and competition.

Taada v. Tuvera15 stressed the need for publication in order for statutes and administrative rules
and regulations to have binding force and effect, viz.:

x x x all statutes, including those of local application and private laws, shall be published as a
condition for their effectivity, which shall begin fifteen days after publication unless a different
effectivity is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in
the exercise of legislative power or, at present, directly conferred by the Constitution. Administrative
Rules and Regulations must also be published if their purpose is to enforce or implement existing
law pursuant also to a valid delegation.16

Taada, however, qualified that:

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel
of the administrative agency and not the public, need not be published. Neither is publication
required of the so-called letters of instructions issued by administrative superiors concerning the
rules or guidelines to be followed by their subordinates in the performance of their
duties.17 (emphasis ours)

In this case, NPC Circular No. 99-75 did not have to be published since it was merely an internal rule
or regulation. It did not purport to enforce or implement an existing law but was merely a directive
issued by the NPC President to his subordinates to regulate the proper and efficient disposal of
scrap ACSRs to qualified bidders. Thus, NPC Circular No. 99-75 defined the responsibilities of the
different NPC personnel in the disposal, pre-qualification, bidding and award of scrap ACSRS. 18 It
also provided for the deposit of a proposal bond to be submitted by bidders, the approval of the
award, mode of payment and release of awarded scrap ACSRs.19 All these guidelines were
addressed to the NPC personnel involved in the bidding and award of scrap ACSRs. It did not, in
any way, affect the rights of the public in general or of any other person not involved in the bidding
process. Assuming it affected individual rights, it did so only remotely, indirectly and incidentally.

Pinatubos argument that items 3 and 3.1 of NPC Circular No. 99-75 deprived it of its "right to bid" or
that these conferred such right in favor of a third person is erroneous. Bidding, in its comprehensive
sense, means making an offer or an invitation to prospective contractors whereby the government
manifests its intention to invite proposals for the purchase of supplies, materials and equipment for
official business or public use, or for public works or repair. 20 Bidding rules may specify other
conditions or require that the bidding process be subjected to certain reservations or
qualifications.21 Since a bid partakes of the nature of an offer to contract with the government,22 the
government agency involved may or may not accept it. Moreover, being the owner of the property
subject of the bid, the government has the power to determine who shall be its recipient, as well as
under what terms it may be awarded. In this sense, participation in the bidding process is a privilege
inasmuch as it can only be exercised under existing criteria imposed by the government itself. As
such, prospective bidders, including Pinatubo, cannot claim any demandable right to take part in it if
they fail to meet these criteria. Thus, it has been stated that under the traditional form of property
ownership, recipients of privileges or largesse from the government cannot be said to have property
rights because they possess no traditionally recognized proprietary interest therein. 23

Also, as the discretion to accept or reject bids and award contracts is of such wide latitude, courts
will not interfere, unless it is apparent that such discretion is exercised arbitrarily, or used as a shield
to a fraudulent award. The exercise of that discretion is a policy decision that necessitates prior
inquiry, investigation, comparison, evaluation, and deliberation. This task can best be discharged by
the concerned government agencies, not by the courts. Courts will not interfere with executive or
legislative discretion exercised within those boundaries. Otherwise, they stray into the realm of policy
decision-making.24

Limiting qualified bidders in this case to partnerships or corporations that directly use aluminum as
the raw material in producing finished products made purely or partly of aluminum was an exercise
of discretion by the NPC. Unless the discretion was exercised arbitrarily or used as a subterfuge for
fraud, the Court will not interfere with the exercise of such discretion.

This brings to the fore the next question: whether items 3 and 3.1 of NPC Circular No. 99-75 violated
the equal protection clause of the Constitution.

The equal protection clause means that "no person or class of persons shall be deprived of the
same protection of laws which is enjoyed by other persons or other classes in the same place and in
like circumstances."25 The guaranty of the equal protection of the laws is not violated by a legislation
based on a reasonable classification.26The equal protection clause, therefore, does not preclude
classification of individuals who may be accorded different treatment under the law as long as the
classification is reasonable and not arbitrary.271avvphi1

Items 3 and 3.1 met the standards of a valid classification. Indeed, as juxtaposed by the RTC, the
purpose of NPC Circular No. 99-75 was to dispose of the ACSR wires. 28 As stated by Pinatubo, it
was also meant to earn income for the government.29 Nevertheless, the disposal and revenue-
generating objective of the circular was not an end in itself and could not bar NPC from imposing
conditions for the proper disposition and ultimately, the legitimate use of the scrap ACSR wires. In
giving preference to direct manufacturers and producers, it was the intent of NPC to support RA
7832, which penalizes the theft of ACSR in excess of 100 MCM.30 The difference in treatment
between direct manufacturers and producers, on one hand, and traders, on the other, was
rationalized by NPC as follows:

x x x NAPOCOR can now easily monitor the market of its scrap ACSR wires and verify whether or
not a persons possession of such materials is legal or not; and consequently, prosecute under R.A.
7832, those whose possession, control or custody of such material is unexplained. This is based
upon the reasonable presumption that if the buyer were a manufacturer or processor, the scrap
ACSRs end with him as the latter uses it to make finished products; but if the buyer were a trader,
there is greater probability that the purchased materials may pass from one trader to another. Should
traders without tie-up to manufacturers or processors of aluminum be allowed to participate in the
bidding, the ACSRs bidded out to them will likely co-mingle with those already proliferating in the
illegal market. Thus, great difficulty shall be encountered by NAPOCOR and/or those authorities
tasked to implement R.A. 7832 in determining whether or not the ACSRs found in the possession,
control and custody of a person suspected of theft [of] electric power transmission lines and
materials are the fruit of the offense defined in Section 3 of R.A. 7832. 31

Items 3 and 3.1 clearly did not infringe on the equal protection clause as these were based on a
reasonable classification intended to protect, not the right of any business or trade but the integrity of
government property, as well as promote the objectives of RA 7832. Traders like Pinatubo could not
claim similar treatment as direct manufacturers/processors especially in the light of their failure to
negate the rationale behind the distinction.

Finally, items 3 and 3.1 of NPC Circular No. 99-75 did not restrain free trade or competition.

Pinatubo contends that the condition imposed by NPC under items 3 and 3.1 violated the principle of
competitiveness advanced by RA 9184 (Government Procurement Reform Act) which states:

SEC. 3. Governing Principles on Government Procurement. All procurement of the national

government, its departments, bureaus, offices and agencies, including state universities and
colleges, government-owned and/or controlled corporations, government financial institutions and
local government units, shall, in all cases, be governed by these principles:

xxx

(b) Competitiveness by extending equal opportunity to enable private contracting parties who
are eligible andqualified to participate in public bidding. (emphasis ours)

The foregoing provision imposed the precondition that the contracting parties should
be eligible and qualified. It should be emphasized that the bidding process was not a "free-for-all"
where any and all interested parties, qualified or not, could take part. Section 5(e) of RA 9184
defines competitive bidding as a "method of procurement which is open to participation by any
interested party and which consists of the following processes: advertisement, pre-bid
conference, eligibility screening of prospective bidders, receipt and opening of bids, evaluation
of bids, post-qualification, and award of contract x x x." The law categorically mandates that
prospective bidders are subject to eligibility screening, and as earlier stated, bidding rules may
specify other conditions or order that the bidding process be subjected to certain reservations or
qualifications.32 Thus, in its pre-qualification guidelines issued for the sale of scrap ACSRs, the NPC
reserved the right to pre-disqualify any applicant who did not meet the requirements for pre-
qualification.33 Clearly, the competitiveness policy of a bidding process presupposes the eligibility
and qualification of a contestant; otherwise, it defeats the principle that only "responsible" and
"qualified" bidders can bid and be awarded government contracts.34 Our free enterprise system is not
based on a market of pure and unadulterated competition where the State pursues a strict hands-off
policy and follows the let-the-devil-devour-the-hindmost rule.35

Moreover, the mere fact that incentives and privileges are granted to certain enterprises to the
exclusion of others does not render the issuance unconstitutional for espousing unfair
competition.36 While the Constitution enshrines free enterprise as a policy, it nonetheless reserves to
the government the power to intervene whenever necessary to promote the general welfare. 37 In the
present case, the unregulated disposal and sale of scrap ACSR wires will hamper the governments
effort of curtailing the pernicious practice of trafficking stolen government property. This is an evil
sought to be prevented by RA 7832 and certainly, it was well within the authority of the NPC to
prescribe conditions in order to prevent it.

WHEREFORE, the petition is hereby GRANTED. The decision of the Regional Trial Court of
Mandaluyong City, Branch 213 dated June 30, 2006 and resolution dated November 20, 2006
are REVERSED and SET ASIDE. Civil Case No. MC-03-2179 for the annulment of NPC Circular No.
99-75 is hereby DISMISSED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 180643 September 4, 2008

ROMULO L. NERI, petitioner,

vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS,
SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON
NATIONAL DEFENSE AND SECURITY, respondents.

RESOLUTION

LEONARDO-DE CASTRO, J.:

Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It
exists to protect public interest, not to benefit a particular public official. Its purpose, among others, is
to assure that the nation will receive the benefit of candid, objective and untrammeled
communication and exchange of information between the President and his/her advisers in the
process of shaping or forming policies and arriving at decisions in the exercise of the functions of the
Presidency under the Constitution. The confidentiality of the Presidents conversations and
correspondence is not unique. It is akin to the confidentiality of judicial deliberations. It possesses
the same value as the right to privacy of all citizens and more, because it is dictated by public
interest and the constitutionally ordained separation of governmental powers.
In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a
hotly, even acrimoniously, debated dispute between the Courts co-equal branches of government. In
this task, this Court should neither curb the legitimate powers of any of the co-equal and coordinate
branches of government nor allow any of them to overstep the boundaries set for it by our
Constitution. The competing interests in the case at bar are the claim of executive privilege by the
President, on the one hand, and the respondent Senate Committees assertion of their power to
conduct legislative inquiries, on the other. The particular facts and circumstances of the present
case, stripped of the politically and emotionally charged rhetoric from both sides and viewed in the
light of settled constitutional and legal doctrines, plainly lead to the conclusion that the claim of
executive privilege must be upheld.

Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the "Decision"),
granting the petition for certiorari filed by petitioner Romulo L. Neri against the respondent Senate
Committees on Accountability of Public Officers and Investigations, 1 Trade and Commerce,2 and
National Defense and Security (collectively the "respondent Committees"). 3

A brief review of the facts is imperative.

On September 26, 2007, petitioner appeared before respondent Committees and testified for about
eleven (11) hours on matters concerning the National Broadband Project (the "NBN Project"), a
project awarded by the Department of Transportation and Communications ("DOTC") to Zhong Xing
Telecommunications Equipment ("ZTE"). Petitioner disclosed that then Commission on Elections
("COMELEC") Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of
the NBN Project. He further narrated that he informed President Gloria Macapagal Arroyo
("President Arroyo") of the bribery attempt and that she instructed him not to accept the bribe.
However, when probed further on President Arroyo and petitioners discussions relating to the NBN
Project, petitioner refused to answer, invoking "executive privilege." To be specific, petitioner refused
to answer questions on: (a) whether or not President Arroyo followed up the NBN Project, 4 (b)
whether or not she directed him to prioritize it,5 and (c) whether or not she directed him to approve
it.6

Respondent Committees persisted in knowing petitioners answers to these three questions by

requiring him to appear and testify once more on November 20, 2007. On November 15, 2007,
Executive Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to
dispense with petitioners testimony on the ground of executive privilege. 7 The letter of Executive
Secretary Ermita pertinently stated:

Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and
correspondence between the President and public officials which are considered executive
privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July
9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the
exercise of her executive and policy decision making process. The expectation of a
President to the confidentiality of her conversations and correspondences, like the value
which we accord deference for the privacy of all citizens, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-
making. Disclosure of conversations of the President will have a chilling effect on the
President, and will hamper her in the effective discharge of her duties and responsibilities, if
she is not protected by the confidentiality of her conversations.

The context in which executive privilege is being invoked is that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the Peoples
Republic of China. Given the confidential nature in which these information were conveyed
 to the President, he cannot provide the Committee any further details of these conversations,
without disclosing the very thing the privilege is designed to protect.

In light of the above considerations, this Office is constrained to invoke the settled doctrine of
executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri
accordingly.

Considering that Sec. Neri has been lengthily interrogated on the subject in an
unprecedented 11-hour hearing, wherein he has answered all questions propounded to him
except the foregoing questions involving executive privilege, we therefore request that his
testimony on 20 November 2007 on the ZTE / NBN project be dispensed with.

On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the
President invoking executive privilege. On November 22, 2007, the respondent Committees issued
the show-cause letter requiring him to explain why he should not be cited in contempt. On November
29, 2007, in petitioners reply to respondent Committees, he manifested that it was not his intention
to ignore the Senate hearing and that he thought the only remaining questions were those he
claimed to be covered by executive privilege. He also manifested his willingness to appear and
testify should there be new matters to be taken up. He just requested that he be furnished "in
advance as to what else" he "needs to clarify."

Respondent Committees found petitioners explanations unsatisfactory. Without responding to his

request for advance notice of the matters that he should still clarify, they issued the Order dated
January 30, 2008; In Re: P.S. Res. Nos. 127,129,136 & 144; and privilege speeches of Senator
Lacson and Santiago (all on the ZTE-NBN Project), citing petitioner in contempt of respondent
Committees and ordering his arrest and detention at the Office of the Senate Sergeant-at-Arms until
such time that he would appear and give his testimony.

On the same date, petitioner moved for the reconsideration of the above Order. 8 He insisted that he
had not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his
willingness to testify on new matters, but respondent Committees did not respond to his request for
advance notice of questions. He also mentioned the petition for certiorari he previously filed with this
Court on December 7, 2007. According to him, this should restrain respondent Committees from
enforcing the order dated January 30, 2008 which declared him in contempt and directed his arrest
and detention.

Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for
TRO/Preliminary Injunction) on February 1, 2008. In the Courts Resolution dated February 4, 2008,
the parties were required to observe the status quo prevailing prior to the Order dated January 30,
2008.

On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the
communications elicited by the three (3) questions were covered by executive privilege;
and second, respondent Committees committed grave abuse of discretion in issuing the contempt
order. Anent the first ground, we considered the subject communications as falling under
the presidential communications privilege because (a) they related to a quintessential and non-
delegable power of the President, (b) they were received by a close advisor of the President, and (c)
respondent Committees failed to adequately show a compelling need that would justify the limitation
of the privilege and the unavailability of the information elsewhere by an appropriate investigating
authority. As to the second ground, we found that respondent Committees committed grave abuse of
discretion in issuing the contempt order because (a) there was a valid claim of executive privilege,
(b) their invitations to petitioner did not contain the questions relevant to the inquiry, (c) there was a
cloud of doubt as to the regularity of the proceeding that led to their issuance of the contempt order,
(d) they violated Section 21, Article VI of the Constitution because their inquiry was not in
accordance with the "duly published rules of procedure," and (e) they issued the contempt order
arbitrarily and precipitately.

On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on
the following grounds:

CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO DOUBT THAT

THE ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT
TO THE EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR
OVERSIGHT FUNCTIONS.

II

CONTRARY TO THIS HONORABLE COURTS DECISION, THERE CAN BE NO

PRESUMPTION THAT THE INFORMATION WITHHELD IN THE INSTANT CASE IS
PRIVILEGED.

III

CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO FACTUAL OR

LEGAL BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY THE SUBJECT
THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE, CONSIDERING
THAT:

A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE

IS CLAIMED CONSTITUTE STATE SECRETS.

B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS

APPLIED, THERE IS NO SHOWING THAT THE ELEMENTS OF PRESIDENTIAL
COMMUNICATIONS PRIVILEGE ARE PRESENT.

C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING NEED

TO JUSTIFY THE DISCLOSURE OF THE INFORMATION SOUGHT.

D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE

WOULD SERIOUSLY IMPAIR THE RESPONDENTS PERFORMANCE OF THEIR
PRIMARY FUNCTION TO ENACT LAWS.

E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND

THE CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND
TRANSPARENCY OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE.

IV

CONTRARY TO THIS HONORABLE COURTS DECISION, RESPONDENTS DID NOT

COMMIT GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT
ORDER, CONSIDERING THAT:
 A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT
CASE.

B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN

INSENATE V. ERMITA.

C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH

THEIR INTERNAL RULES.

D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI,

SECTION 21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE
BE DULY PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE COURT
CONSIDERED THE OSGS INTERVENTION ON THIS ISSUE WITHOUT GIVING
RESPONDENTS THE OPPORTUNITY TO COMMENT.

E. RESPONDENTS ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR

PRECIPITATE.

In his Comment, petitioner charges respondent Committees with exaggerating and distorting the
Decision of this Court. He avers that there is nothing in it that prohibits respondent Committees from
investigating the NBN Project or asking him additional questions. According to petitioner, the Court
merely applied the rule on executive privilege to the facts of the case. He further submits the
following contentions: first, the assailed Decision did not reverse the presumption against executive
secrecy laid down in Senate v. Ermita; second, respondent Committees failed to overcome the
presumption of executive privilege because it appears that they could legislate even without the
communications elicited by the three (3) questions, and they admitted that they could dispense with
petitioners testimony if certain NEDA documents would be given to them; third, the requirement of
specificity applies only to the privilege for State, military and diplomatic secrets, not to the
necessarily broad and all-encompassing presidential communications privilege; fourth, there is no
right to pry into the Presidents thought processes or exploratory exchanges; fifth, petitioner is not
covering up or hiding anything illegal; sixth, the Court has the power and duty to annul the Senate
Rules; seventh, the Senate is not a continuing body, thus the failure of the present Senate to publish
its Rules of Procedure Governing Inquiries in Aid of Legislation (Rules) has a vitiating effect on
them; eighth, the requirement for a witness to be furnished advance copy of questions comports
with due process and the constitutional mandate that the rights of witnesses be respected;
and ninth, neither petitioner nor respondent has the final say on the matter of executive privilege,
only the Court.

For its part, the Office of the Solicitor General maintains that: (1) there is no categorical
pronouncement from the Court that the assailed Orders were issued by respondent Committees
pursuant to their oversight function; hence, there is no reason for them "to make much" of the
distinction between Sections 21 and 22, Article VI of the Constitution; (2) presidential
communications enjoy a presumptive privilege against disclosure as earlier held in Almonte v.
Vasquez9 and Chavez v. Public Estates Authority(PEA)10; (3) the communications elicited by the
three (3) questions are covered by executive privilege, because all the elements of the presidential
communications privilege are present; (4) the subpoena ad testificandum issued by respondent
Committees to petitioner is fatally defective under existing law and jurisprudence; (5) the failure of
the present Senate to publish its Rules renders the same void; and (6) respondent Committees
arbitrarily issued the contempt order.
Incidentally, respondent Committees objection to the Resolution dated March 18, 2008 (granting the
Office of the Solicitor Generals Motion for Leave to Intervene and to Admit Attached Memorandum)
only after the promulgation of the Decision in this case is foreclosed by its untimeliness.

The core issues that arise from the foregoing respective contentions of the opposing parties are as
follows:

(1) whether or not there is a recognized presumptive presidential communications privilege

in our legal system;

(2) whether or not there is factual or legal basis to hold that the communications elicited by
the three (3) questions are covered by executive privilege;

(3) whether or not respondent Committees have shown that the communications elicited by
the three (3) questions are critical to the exercise of their functions; and

(4) whether or not respondent Committees committed grave abuse of discretion in issuing
the contempt order.

We shall discuss these issues seriatim.

There Is a Recognized Presumptive

Presidential Communications Privilege

Respondent Committees ardently argue that the Courts declaration that presidential
communications are presumptively privileged reverses the "presumption" laid down in Senate v.
Ermita11 that "inclines heavily against executive secrecy and in favor of disclosure." Respondent
Committees then claim that the Court erred in relying on the doctrine in Nixon.

Respondent Committees argue as if this were the first time the presumption in favor of
the presidential communications privilege is mentioned and adopted in our legal system. That is
far from the truth. The Court, in the earlier case of Almonte v. Vasquez,12 affirmed that
the presidential communications privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution. Even Senate v. Ermita,13 the
case relied upon by respondent Committees, reiterated this concept. There, the Court enumerated
the cases in which the claim of executive privilege was recognized, among them Almonte v.
Chavez, Chavez v. Presidential Commission on Good Government (PCGG),14 and Chavez v.
PEA.15 The Court articulated in these cases that "there are certain types of information which the
government may withhold from the public,16" that there is a "governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic and other national security
matters";17 and that "the right to information does not extend to matters recognized as
privileged information under the separation of powers, by which the Court meant
Presidential conversations, correspondences, and discussions in closed-door Cabinet
meetings."18

Respondent Committees observation that this Courts Decision reversed the "presumption that
inclines heavily against executive secrecy and in favor of disclosure" arises from a piecemeal
interpretation of the said Decision. The Court has repeatedly held that in order to arrive at the true
intent and meaning of a decision, no specific portion thereof should be isolated and resorted to, but
the decision must be considered in its entirety.19

Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate
v. Ermita, which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of
2005. The pertinent portion of the decision in the said case reads:

From the above discussion on the meaning and scope of executive privilege, both in the
United States and in this jurisprudence, a clear principle emerges. Executive privilege,
whether asserted against Congress, the courts, or the public, is recognized only in relation
to certain types of information of a sensitive character. While executive privilege is a
constitutional concept, a claimthereof may be valid or not depending on the ground invoked
to justify it and the context in which it is made. Noticeably absent is any recognition that
executive officials are exempt from the duty to disclose information by the mere fact of being
executive officials. Indeed, the extraordinary character of the exemptions indicates that
the presumption inclines heavily againstexecutive secrecy and in favor of disclosure.
(Emphasis and underscoring supplied)

Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the
"exemption" being claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464,
solely by virtue of their positions in the Executive Branch. This means that when an executive
official, who is one of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt
from disclosure, there can be no presumption of authorization to invoke executive privilege
given by the President to said executive official, such that the presumption in this situation inclines
heavily against executive secrecy and in favor of disclosure.

Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise:

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines
that a certain information is privileged, such determination is presumed to bear the
Presidents authority and has the effect of prohibiting the official from appearing before
Congress, subject only to the express pronouncement of the President that it is allowing the
appearance of such official. These provisions thus allow the President to authorize claims of
privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the

privilege. Executive privilege, as already discussed, is recognized with respect to information
the confidential nature of which is crucial to the fulfillment of the unique role and
responsibilities of the executive branch, or in those instances where exemption from
disclosure is necessary to the discharge ofhighly important executive responsibilities. The
doctrine of executive privilege is thus premised on the fact that certain information must, as a
matter of necessity, be kept confidential in pursuit of the public interest. The privilege being,
by definition, an exemption from the obligation to disclose information, in this case to
Congress, the necessity must be of such high degree as to outweigh the public interest in
enforcing that obligation in a particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to
the President the power to invoke the privilege. She may of course authorize the Executive
Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must
state that the authority is "By order of the President", which means that he personally
consulted with her. The privilege being an extraordinary power, it must be wielded only by the
highest official in the executive hierarchy. In other words, the President may not authorize
 her subordinates to exercise such power. There is even less reason to uphold such
authorization in the instant case where the authorization is not explicit but by mere silence.
Section 3, in relation to Section 2(b), is further invalid on this score.

The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by
the President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.

In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive
privilege on a specific matter involving an executive agreement between the Philippines and China,
which was the subject of the three (3) questions propounded to petitioner Neri in the course of the
Senate Committees investigation. Thus, the factual setting of this case markedly differs from that
passed upon in Senate v. Ermita.

Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the
ruling in Senate v. Ermita,21 to wit:

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used even
prior to the promulgation of the 1986 Constitution. Being of American origin, it is best
understood in light of how it has been defined and used in the legal literature of the United
States.

Schwart defines executive privilege as "the power of the Government to withhold

information from the public, the courts, and the Congress. Similarly, Rozell defines it as
"the right of the President and high-level executive branch officers to withhold information
from Congress, the courts, and ultimately the public." x x x In this jurisdiction, the doctrine of
executive privilege was recognized by this Court in Almonte v. Vasquez. Almonte used the
term in reference to the same privilege subject of Nixon. It quoted the following portion of the
Nixon decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and

correspondences, like the claim of confidentiality of judicial deliberations, for example,
he has all the values to which we accord deference for the privacy of all citizens and, added
to those values, is the necessity for protection of the public interest in candid, objective, and
even blunt or harsh opinions in Presidential decision-making. A President and those who
assist him must be free to explore alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to express except privately. These
are the considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution x x x "
(Emphasis and italics supplied)

Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential
communication," which was recognized early on in Almonte v. Vasquez. To construe the passage
inSenate v. Ermita adverted to in the Motion for Reconsideration of respondent Committees,
referring to the non-existence of a "presumptive authorization" of an executive official, to mean that
the "presumption" in favor of executive privilege "inclines heavily against executive secrecy and in
favor of disclosure" is to distort the ruling in the Senate v. Ermita and make the same engage in self-
contradiction.
Senate v. Ermita22 expounds on the constitutional underpinning of the relationship between the
Executive Department and the Legislative Department to explain why there should be no implied
authorization or presumptive authorization to invoke executive privilege by the Presidents
subordinate officials, as follows:

When Congress exercises its power of inquiry, the only way for department heads to
exempt themselves therefrom is by a valid claim of privilege. They are not exempt by
the mere fact that they are department heads. Only one executive official may be
exempted from this power - the President on whom executive power is vested, hence,
beyond the reach of Congress except through the power of impeachment. It is based on he
being the highest official of the executive branch, and the due respect accorded to a co-
equal branch of governments which is sanctioned by a long-standing custom. (Underscoring
supplied)

Thus, if what is involved is the presumptive privilege of presidential communications when invoked
by the President on a matter clearly within the domain of the Executive, the said presumption
dictates that the same be recognized and be given preference or priority, in the absence of proof of a
compelling or critical need for disclosure by the one assailing such presumption. Any construction to
the contrary will render meaningless the presumption accorded by settled jurisprudence in favor of
executive privilege. In fact, Senate v. Ermita reiterates jurisprudence citing "the considerations
justifying a presumptive privilege for Presidential communications."23

II

There Are Factual and Legal Bases to

Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege

Respondent Committees claim that the communications elicited by the three (3) questions are not
covered by executive privilege because the elements of the presidential communications
privilegeare not present.

A. The power to enter into an executive agreement is a "quintessential and non-delegable

presidential power."

First, respondent Committees contend that the power to secure a foreign loan does not relate to a
"quintessential and non-delegable presidential power," because the Constitution does not vest it in
the President alone, but also in the Monetary Board which is required to give its prior concurrence
and to report to Congress.

This argument is unpersuasive.

The fact that a power is subject to the concurrence of another entity does not make such power less
executive. "Quintessential" is defined as the most perfect embodiment of something, the
concentrated essence of substance.24 On the other hand, "non-delegable" means that a power or
duty cannot be delegated to another or, even if delegated, the responsibility remains with the
obligor.25 The power to enter into an executive agreement is in essence an executive power. This
authority of the President to enter into executive agreements without the concurrence of the
Legislature has traditionally been recognized in Philippine jurisprudence. 26 Now, the fact that the
President has to secure the prior concurrence of the Monetary Board, which shall submit to
Congress a complete report of its decision before contracting or guaranteeing foreign loans, does
not diminish the executive nature of the power.
The inviolate doctrine of separation of powers among the legislative, executive and judicial branches
of government by no means prescribes absolute autonomy in the discharge by each branch of that
part of the governmental power assigned to it by the sovereign people. There is the corollary
doctrine of checks and balances, which has been carefully calibrated by the Constitution to temper
the official acts of each of these three branches. Thus, by analogy, the fact that certain legislative
acts require action from the President for their validity does not render such acts less legislative in
nature. A good example is the power to pass a law. Article VI, Section 27 of the Constitution
mandates that every bill passed by Congress shall, before it becomes a law, be presented to the
President who shall approve or veto the same. The fact that the approval or vetoing of the bill is
lodged with the President does not render the power to pass law executive in nature. This is
because the power to pass law is generally a quintessential and non-delegable power of the
Legislature. In the same vein, the executive power to enter or not to enter into a contract to secure
foreign loans does not become less executive in nature because of conditions laid down in the
Constitution. The final decision in the exercise of the said executive power is still lodged in the Office
of the President.

B. The "doctrine of operational proximity" was laid down precisely to limit the scope of the
presidential communications privilege but, in any case, it is not conclusive.

Second, respondent Committees also seek reconsideration of the application of the "doctrine of
operational proximity" for the reason that "it maybe misconstrued to expand the scope of the
presidential communications privilege to communications between those who are operationally
proximate to the President but who may have "no direct communications with her."

It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed
Case27precisely to limit the scope of the presidential communications privilege. The U.S. court was
aware of the dangers that a limitless extension of the privilege risks and, therefore, carefully cabined
its reach by explicitly confining it to White House staff, and not to staffs of the agencies, and then
only to White House staff that has "operational proximity" to direct presidential decision-making,
thus:

We are aware that such an extension, unless carefully circumscribed to accomplish the
purposes of the privilege, could pose a significant risk of expanding to a large swath of the
executive branch a privilege that is bottomed on a recognition of the unique role of the
President. In order to limit this risk, the presidential communications privilege should be
construed as narrowly as is consistent with ensuring that the confidentiality of the Presidents
decision-making process is adequately protected. Not every person who plays a role in
the development of presidential advice, no matter how remote and removed from the
President, can qualify for the privilege. In particular, the privilege should not extend to
staff outside the White House in executive branch agencies. Instead, the privilege
should apply only to communications authored or solicited and received by those members
of an immediate White House advisors staff who have broad and significant responsibility for
investigation and formulating the advice to be given the President on the particular matter to
which the communications relate. Only communications at that level are close enough to
the President to be revelatory of his deliberations or to pose a risk to the candor of his
advisers. See AAPS, 997 F.2d at 910 (it is "operational proximity" to the President that
matters in determining whether "[t]he Presidents confidentiality interests" is
implicated). (Emphasis supplied)

In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" (a
fear apparently entertained by respondents) is absent because the official involved here is a member
of the Cabinet, thus, properly within the term "advisor" of the President; in fact, her alter ego and a
member of her official family. Nevertheless, in circumstances in which the official involved is far too
remote, this Court also mentioned in the Decision the organizational test laid down in Judicial
Watch, Inc. v. Department of Justice.28 This goes to show that the operational proximity test used in
the Decision is not considered conclusive in every case. In determining which test to use, the main
consideration is to limit the availability of executive privilege only to officials who stand proximate to
the President, not only by reason of their function, but also by reason of their positions in the
Executives organizational structure. Thus, respondent Committees fear that the scope of the
privilege would be unnecessarily expanded with the use of the operational proximity test is
unfounded.

C. The Presidents claim of executive privilege is not merely based on a generalized interest;
and in balancing respondent Committees and the Presidents clashing interests, the Court
did not disregard the 1987 Constitutional provisions on government transparency,
accountability and disclosure of information.

Third, respondent Committees claim that the Court erred in upholding the Presidents invocation,
through the Executive Secretary, of executive privilege because (a) between respondent
Committees specific and demonstrated need and the Presidents generalized interest in
confidentiality, there is a need to strike the balance in favor of the former; and (b) in the balancing of
interest, the Court disregarded the provisions of the 1987 Philippine Constitution on government
transparency, accountability and disclosure of information, specifically, Article III, Section 7; 29 Article
II, Sections 2430 and 28;31 Article XI, Section 1;32 Article XVI, Section 10;33 Article VII, Section
20;34 and Article XII, Sections 9,35 21,36 and 22.37

It must be stressed that the Presidents claim of executive privilege is not merely founded on her
generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive Secretary
Ermita specified presidential communications privilege in relation to diplomatic and economic
relations with another sovereign nation as the bases for the claim. Thus, the Letter stated:

The context in which executive privilege is being invoked is that the information
sought to be disclosed might impair our diplomatic as well as economic relations with
the Peoples Republic of China. Given the confidential nature in which this information
were conveyed to the President, he cannot provide the Committee any further details of
these conversations, without disclosing the very thing the privilege is designed to
protect. (emphasis supplied)

Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the
reasons for the claim with such particularity as to compel disclosure of the information which the
privilege is meant to protect. This is a matter of respect for a coordinate and co-equal department.

It is easy to discern the danger that goes with the disclosure of the Presidents communication with
her advisor. The NBN Project involves a foreign country as a party to the agreement. It was actually
a product of the meeting of minds between officials of the Philippines and China. Whatever the
President says about the agreement - particularly while official negotiations are ongoing - are
matters which China will surely view with particular interest. There is danger in such kind of
exposure. It could adversely affect our diplomatic as well as economic relations with the Peoples
Republic of China. We reiterate the importance of secrecy in matters involving foreign negotiations
as stated in United States v. Curtiss-Wright Export Corp., 38 thus:

The nature of foreign negotiations requires caution, and their success must often depend on
secrecy, and even when brought to a conclusion, a full disclosure of all the measures,
demands, or eventual concessions which may have been proposed or contemplated would
 be extremely impolitic, for this might have a pernicious influence on future negotiations or
produce immediate inconveniences, perhaps danger and mischief, in relation to other
powers. The necessity of such caution and secrecy was one cogent reason for vesting the
power of making treaties in the President, with the advice and consent of the Senate, the
principle on which the body was formed confining it to a small number of members. To admit,
then, a right in the House of Representatives to demand and to have as a matter of course
all the papers respecting a negotiation with a foreign power would be to establish a
dangerous precedent.

US jurisprudence clearly guards against the dangers of allowing Congress access to all papers
relating to a negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Citizens
Action Party, et al. v. Thomas G. Aquino, et al.39 upheld the privileged character of diplomatic
negotiations. InAkbayan, the Court stated:

Privileged character of diplomatic negotiations

The privileged character of diplomatic negotiations has been recognized in this jurisdiction.
In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held
that "information on inter-government exchanges prior to the conclusion of treaties and
executive agreements may be subject to reasonable safeguards for the sake of national
interest." Even earlier, the same privilege was upheld in Peoples Movement for Press
Freedom (PMPF) v. Manglapus wherein the Court discussed the reasons for the privilege in
more precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information from the Presidents
representatives on the state of the then on-going negotiations of the RP-US Military Bases
Agreement. The Court denied the petition, stressing that "secrecy of negotiations with
foreign countries is not violative of the constitutional provisions of freedom of speech or of
the press norof the freedom of access to information." The Resolution went on to state,
thus:

The nature of diplomacy requires centralization of authority and expedition of

decision which are inherent in executive action. Another essential
characteristic of diplomacy is its confidential nature. Although much has been
said about "open" and "secret" diplomacy, with disparagement of the latter,
Secretaries of State Hughes and Stimson have clearly analyzed and justified the
practice. In the words of Mr. Stimson:

"A complicated negotiation cannot be carried through without many,

many private talks and discussion, man to man; many tentative
suggestions and proposals. Delegates from other countries come and
tell you in confidence of their troubles at home and of their differences
with other countries and with other delegates; they tell you of what they
would do under certain circumstances and would not do under other
circumstances If these reports should become public who would
ever trust American Delegations in another conference? (United States
Department of State, Press Releases, June 7, 1930, pp. 282-284)

xxxx

There is frequent criticism of the secrecy in which negotiation with foreign

powers on nearly all subjects is concerned. This, it is claimed, is incompatible
 with the substance of democracy. As expressed by one writer, "It can be said that
there is no more rigid system of silence anywhere in the world." (E.J. Young, Looking
Behind the Censorship, J. B. Lipincott Co., 1938) President Wilson in starting his
efforts for the conclusion of the World War declared that we must have "open
covenants, openly arrived at." He quickly abandoned his thought.

No one who has studied the question believes that such a method of publicity is
possible. In the moment that negotiations are started, pressure groups attempt
to "muscle in." An ill-timed speech by one of the parties or a frank declaration
of the concession which are exacted or offered on both sides would quickly
lead to a widespread propaganda to block the negotiations. After a treaty has
been drafted and its terms are fully published, there is ample opportunity for
discussion before it is approved.(The New American Government and Its Works,
James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export
Corp.that the President is the sole organ of the nation in its negotiations with foreign
countries,viz:

"x x x In this vast external realm, with its important, complicated, delicate and
manifold problems, the President alone has the power to speak or listen as a
representative of the nation. He makes treaties with the advice and consent of the
Senate; but he alone negotiates. Into the field of negotiation the Senate cannot
intrude; and Congress itself is powerless to invade it. As Marshall said in his great
arguments of March 7, 1800, in the House of Representatives, "The President is the
sole organ of the nation in its external relations, and its sole representative
with foreign nations." Annals, 6th Cong., col. 613 (Emphasis supplied;
underscoring in the original)

Considering that the information sought through the three (3) questions subject of this Petition
involves the Presidents dealings with a foreign nation, with more reason, this Court is wary of
approving the view that Congress may peremptorily inquire into not only official, documented acts of
the President but even her confidential and informal discussions with her close advisors on the
pretext that said questions serve some vague legislative need. Regardless of who is in office, this
Court can easily foresee unwanted consequences of subjecting a Chief Executive to unrestricted
congressional inquiries done with increased frequency and great publicity. No Executive can
effectively discharge constitutional functions in the face of intense and unchecked legislative
incursion into the core of the Presidents decision-making process, which inevitably would involve
her conversations with a member of her Cabinet.

With respect to respondent Committees invocation of constitutional prescriptions regarding the right
of the people to information and public accountability and transparency, the Court finds nothing in
these arguments to support respondent Committees case.

There is no debate as to the importance of the constitutional right of the people to information and
the constitutional policies on public accountability and transparency. These are the twin postulates
vital to the effective functioning of a democratic government. The citizenry can become prey to the
whims and caprices of those to whom the power has been delegated if they are denied access to
information. And the policies on public accountability and democratic government would certainly be
mere empty words if access to such information of public concern is denied.
In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific
questions, did not in any way curb the publics right to information or diminish the importance of
public accountability and transparency.

This Court did not rule that the Senate has no power to investigate the NBN Project in aid of
legislation. There is nothing in the assailed Decision that prohibits respondent Committees from
inquiring into the NBN Project. They could continue the investigation and even call petitioner Neri to
testify again. He himself has repeatedly expressed his willingness to do so. Our Decision merely
excludes from the scope of respondents investigation the three (3) questions that elicit answers
covered by executive privilege and rules that petitioner cannot be compelled to appear before
respondents to answer the said questions. We have discussed the reasons why these answers are
covered by executive privilege. That there is a recognized public interest in the confidentiality of such
information is a recognized principle in other democratic States. To put it simply, the right to
information is not an absolute right.

Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute
right to information. By their wording, the intention of the Framers to subject such right to the
regulation of the law is unmistakable. The highlighted portions of the following provisions show the
obvious limitations on the right to information, thus:

Article III, Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official
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.

Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all its transactions involving public
interest.(Emphasis supplied)

In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no
specific laws prescribing the exact limitations within which the right may be exercised or the
correlative state duty may be obliged. Nonetheless, it enumerated the recognized restrictions to such
rights, among them: (1) national security matters, (2) trade secrets and banking transactions, (3)
criminal matters, and (4) other confidential information. National security matters include state
secrets regarding military and diplomatic matters, as well as information on inter-government
exchanges prior to the conclusion of treaties and executive agreements. It was further held that
even where there is no need to protect such state secrets, they must be "examined in strict
confidence and given scrupulous protection."

Incidentally, the right primarily involved here is the right of respondent Committees to obtain
information allegedly in aid of legislation, not the peoples right to public information. This is the
reason why we stressed in the assailed Decision the distinction between these two rights. As laid
down in Senate v. Ermita, "the demand of a citizen for the production of documents pursuant to his
right to information does not have the same obligatory force as a subpoena duces tecum issued by
Congress" and "neither does the right to information grant a citizen the power to exact testimony
from government officials." As pointed out, these rights belong to Congress, not to the individual
citizen. It is worth mentioning at this juncture that the parties here are respondent Committees and
petitioner Neri and that there was no prior request for information on the part of any individual
citizen. This Court will not be swayed by attempts to blur the distinctions between the Legislature's
right to information in a legitimate legislative inquiry and the public's right to information.
For clarity, it must be emphasized that the assailed Decision did not enjoin respondent
Committees from inquiring into the NBN Project. All that is expected from them is to respect
matters that are covered by executive privilege.

III.

Respondent Committees Failed to Show That

the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions

In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion
on the purported legislative nature of their entire inquiry, as opposed to an oversight inquiry.

At the outset, it must be clarified that the Decision did not pass upon the nature of respondent
Committees inquiry into the NBN Project. To reiterate, this Court recognizes respondent
Committees power to investigate the NBN Project in aid of legislation. However, this Court cannot
uphold the view that when a constitutionally guaranteed privilege or right is validly invoked by a
witness in the course of a legislative investigation, the legislative purpose of respondent Committees
questions can be sufficiently supported by the expedient of mentioning statutes and/or pending bills
to which their inquiry as a whole may have relevance. The jurisprudential test laid down by this Court
in past decisions on executive privilege is that the presumption of privilege can only be overturned
by a showing of compelling needfor disclosure of the information covered by executive privilege.

In the Decision, the majority held that "there is no adequate showing of a compelling need that would
justify the limitation of the privilege and of the unavailability of the information elsewhere by an
appropriate investigating authority." In the Motion for Reconsideration, respondent Committees
argue that the information elicited by the three (3) questions are necessary in the discharge of their
legislative functions, among them, (a) to consider the three (3) pending Senate Bills, and (b) to curb
graft and corruption.

We remain unpersuaded by respondents assertions.

In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other
interests and it is necessary to resolve the competing interests in a manner that would preserve the
essential functions of each branch. There, the Court weighed between presidential privilege and the
legitimate claims of the judicial process. In giving more weight to the latter, the Court ruled that the
President's generalized assertion of privilege must yield to the demonstrated, specific need for
evidence in a pending criminal trial.

The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the
primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said
Court further ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice Puno's
dissenting opinion, as follows:

"... this presumptive privilege must be considered in light of our historic commitment to the
rule of law. This is nowhere more profoundly manifest than in our view that 'the twofold aim
(of criminal justice) is that guild shall not escape or innocence suffer.' Berger v. United
States, 295 U.S., at 88, 55 S.Ct., at 633. We have elected to employ an adversary system of
criminal justice in which the parties contest all issues before a court of law. The need to
develop all relevant facts in the adversary system is both fundamental and
comprehensive. The ends of criminal justice would be defeated if judgments were to
be founded on a partial or speculative presentation of the facts. The very integrity of
 the judicial system and public confidence in the system depend on full disclosure of
all the facts, within the framework of the rules of evidence. To ensure that justice is
done, it is imperative to the function of courts that compulsory process be
available for the production of evidence needed either by the prosecution or by the defense.

xxx xxx xxx

The right to the production of all evidence at a criminal trial similarly has constitutional
dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial
the right 'to be confronted with the witness against him' and 'to have compulsory
process for obtaining witnesses in his favor.' Moreover, the Fifth Amendment
also guarantees that no person shall be deprived of liberty without due process of
law. It is the manifest duty of the courts to vindicate those guarantees, and to
accomplish that it is essential that all relevant and admissible evidence be produced.

In this case we must weigh the importance of the general privilege of confidentiality of
Presidential communications in performance of the President's responsibilities
against the inroads of such a privilege on the fair administration of criminal
justice. (emphasis supplied)

xxx xxx xxx

...the allowance of the privilege to withhold evidence that is demonstrably relevant in a

criminal trial would cut deeply into the guarantee of due process of law and gravely
impair the basic function of the courts. A President's acknowledged need for
confidentiality in the communications of his office is general in nature, whereas
the constitutional need for production of relevant evidence in a criminal proceeding is
specific and central to the fair adjudication of a particular criminal case in the
administration of justice. Without access to specific facts a criminal prosecution may
be totally frustrated. The President's broad interest in confidentiality of
communication will not be vitiated by disclosure of a limited number of conversations
preliminarily shown to have some bearing on the pending criminal cases.

We conclude that when the ground for asserting privilege as to subpoenaed materials sought
for use in a criminal trial is based only on the generalized interest in confidentiality,
it cannot prevail over the fundamental demands of due process of law in the fair
administration of criminal justice. The generalized assertion of privilege must yield to
the demonstrated, specific need for evidence in a pending criminal trial. (emphasis
supplied)

In the case at bar, we are not confronted with a courts need for facts in order to adjudge liability in a
criminal case but rather with the Senates need for information in relation to its legislative functions.
This leads us to consider once again just how critical is the subject information in the discharge of
respondent Committees functions. The burden to show this is on the respondent Committees, since
they seek to intrude into the sphere of competence of the President in order to gather information
which, according to said respondents, would "aid" them in crafting legislation.

Senate Select Committee on Presidential Campaign Activities v. Nixon41 expounded on the nature of
a legislative inquiry in aid of legislation in this wise:

The sufficiency of the Committee's showing of need has come to depend, therefore, entirely
on whether the subpoenaed materials are critical to the performance of its legislative
 functions. There is a clear difference between Congress' legislative tasks and the
responsibility of a grand jury, or any institution engaged in like functions. While fact-finding
by a legislative committee is undeniably a part of its task, legislative judgments
normally depend more on the predicted consequences of proposed legislative actions
and their political acceptability, than on precise reconstruction of past events;
Congress frequently legislates on the basis of conflicting information provided in its hearings.
In contrast, the responsibility of the grand jury turns entirely on its ability to determine
whether there is probable cause to believe that certain named individuals did or did not
commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury
concerning the content of certain conversations, the grand jury's need for the most precise
evidence, the exact text of oral statements recorded in their original form, is undeniable.We
see no comparable need in the legislative process, at least not in the circumstances of
this case. Indeed, whatever force there might once have been in the Committee's argument
that the subpoenaed materials are necessary to its legislative judgments has been
substantially undermined by subsequent events. (Emphasis supplied)

Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or
demonstratively critical and specific need for facts which is so essential to the judicial power to
adjudicate actual controversies. Also, the bare standard of "pertinency" set in Arnault cannot be
lightly applied to the instant case, which unlike Arnault involves a conflict between two (2) separate,
co-equal and coordinate Branches of the Government.

Whatever test we may apply, the starting point in resolving the conflicting claims between the
Executive and the Legislative Branches is the recognized existence of the presumptive presidential
communications privilege. This is conceded even in the Dissenting Opinion of the Honorable Chief
Justice Puno, which states:

A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified
presumption in favor of the Presidential communications privilege. As shown in the previous
discussion, U.S. v. Nixon, as well as the other related Nixon cases Sirica and Senate
Select Committee on Presidential Campaign Activities, et al., v. Nixon in the D.C. Court
of Appeals, as well as subsequent cases all recognize that there is a presumptive privilege
in favor of Presidential communications. The Almonte case quoted U.S. v. Nixon and
recognized a presumption in favor of confidentiality of Presidential communications.

The presumption in favor of Presidential communications puts the burden on the respondent Senate
Committees to overturn the presumption by demonstrating their specific need for the information to
be elicited by the answers to the three (3) questions subject of this case, to enable them to craft
legislation. Here, there is simply a generalized assertion that the information is pertinent to the
exercise of the power to legislate and a broad and non-specific reference to pending Senate bills. It
is not clear what matters relating to these bills could not be determined without the said information
sought by the three (3) questions. As correctly pointed out by the Honorable Justice Dante O. Tinga
in his Separate Concurring Opinion:

If respondents are operating under the premise that the president and/or her
executive officials have committed wrongdoings that need to be corrected or
prevented from recurring by remedial legislation, the answer to those three questions
will not necessarily bolster or inhibit respondents from proceeding with such
legislation. They could easily presume the worst of the president in enacting such
legislation.
For sure, a factual basis for situations covered by bills is not critically needed before legislatives
bodies can come up with relevant legislation unlike in the adjudication of cases by courts of law.
Interestingly, during the Oral Argument before this Court, the counsel for respondent Committees
impliedly admitted that the Senate could still come up with legislations even without petitioner
answering the three (3) questions. In other words, the information being elicited is not so critical after
all. Thus:

CHIEF JUSTICE PUNO

So can you tell the Court how critical are these questions to the lawmaking function
of the Senate. For instance, question Number 1 whether the President followed up
the NBN project. According to the other counsel this question has already been
asked, is that correct?

ATTY. AGABIN

Well, the question has been asked but it was not answered, Your Honor.

CHIEF JUSTICE PUNO

Yes. But my question is how critical is this to the lawmaking function of the Senate?

ATTY. AGABIN

I believe it is critical, Your Honor.

CHIEF JUSTICE PUNO

Why?

ATTY. AGABIN

For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would
like to indorse a Bill to include Executive Agreements had been used as a device to
the circumventing the Procurement Law.

CHIEF JUSTICE PUNO

But the question is just following it up.

ATTY. AGABIN

I believe that may be the initial question, Your Honor, because if we look at this
problem in its factual setting as counsel for petitioner has observed, there are
intimations of a bribery scandal involving high government officials.

CHIEF JUSTICE PUNO

 Again, about the second question, were you dictated to prioritize this ZTE, is that
critical to the lawmaking function of the Senate? Will it result to the failure of the
Senate to cobble a Bill without this question?

ATTY. AGABIN

I think it is critical to lay the factual foundations for a proposed amendment to the
Procurement Law, Your Honor, because the petitioner had already testified that he
was offered a P200 Million bribe, so if he was offered a P200 Million bribe it is
possible that other government officials who had something to do with the approval
of the contract would be offered the same amount of bribes.

CHIEF JUSTICE PUNO

Again, that is speculative.

ATTY. AGABIN

That is why they want to continue with the investigation, Your Honor.

CHIEF JUSTICE PUNO

How about the third question, whether the President said to go ahead and approve
the project after being told about the alleged bribe. How critical is that to the
lawmaking function of the Senate? And the question is may they craft a Bill a
remedial law without forcing petitioner Neri to answer this question?

ATTY. AGABIN

Well, they can craft it, Your Honor, based on mere speculation. And sound
legislation requires that a proposed Bill should have some basis in fact. 42

The failure of the counsel for respondent Committees to pinpoint the specific need for the
information sought or how the withholding of the information sought will hinder the accomplishment
of their legislative purpose is very evident in the above oral exchanges. Due to the failure of the
respondent Committees to successfully discharge this burden, the presumption in favor of
confidentiality of presidential communication stands. The implication of the said presumption, like
any other, is to dispense with the burden of proof as to whether the disclosure will significantly impair
the Presidents performance of her function. Needless to state this is assumed, by virtue of the
presumption.

Anent respondent Committees bewailing that they would have to "speculate" regarding the
questions covered by the privilege, this does not evince a compelling need for the information
sought. Indeed,Senate Select Committee on Presidential Campaign Activities v. Nixon43 held that
while fact-finding by a legislative committee is undeniably a part of its task, legislative judgments
normally depend more on the predicted consequences of proposed legislative actions and their
political acceptability than on a precise reconstruction of past events. It added that, normally,
Congress legislates on the basis of conflicting information provided in its hearings. We cannot
subscribe to the respondent Committees self-defeating proposition that without the answers to the
three (3) questions objected to as privileged, the distinguished members of the respondent
Committees cannot intelligently craft legislation.
Anent the function to curb graft and corruption, it must be stressed that respondent Committees
need for information in the exercise of this function is not as compelling as in instances when the
purpose of the inquiry is legislative in nature. This is because curbing graft and corruption is merely
an oversight function of Congress.44 And if this is the primary objective of respondent Committees in
asking the three (3) questions covered by privilege, it may even contradict their claim that their
purpose is legislative in nature and not oversight. In any event, whether or not investigating graft and
corruption is a legislative or oversight function of Congress, respondent Committees investigation
cannot transgress bounds set by the Constitution.

In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:

The "allocation of constitutional boundaries" is a task that this Court must perform
under the Constitution. Moreover, as held in a recent case, "the political question doctrine
neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to
delimit constitutional boundaries has been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution, although said provision by no means does
away with the applicability of the principle in appropriate cases.46 (Emphasis supplied)

There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is
not really in aid of legislation because it is not related to a purpose within the jurisdiction of
Congress, since the aim of the investigation is to find out whether or not the relatives of the
President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019, the Anti-Graft and
Corrupt Practices Act, a matter that appears more within the province of the courts rather
than of the Legislature."47 (Emphasis and underscoring supplied)

The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office
of the President.48 While it may be a worthy endeavor to investigate the potential culpability of high
government officials, including the President, in a given government transaction, it is simply not a
task for the Senate to perform. The role of the Legislature is to make laws, not to determine anyones
guilt of a crime or wrongdoing. Our Constitution has not bestowed upon the Legislature the latter
role. Just as the Judiciary cannot legislate, neither can the Legislature adjudicate or prosecute.

Respondent Committees claim that they are conducting an inquiry in aid of legislation and a "search
for truth," which in respondent Committees view appears to be equated with the search for persons
responsible for "anomalies" in government contracts.

No matter how noble the intentions of respondent Committees are, they cannot assume the power
reposed upon our prosecutorial bodies and courts. The determination of who is/are liable for a crime
or illegal activity, the investigation of the role played by each official, the determination of who should
be haled to court for prosecution and the task of coming up with conclusions and finding of facts
regarding anomalies, especially the determination of criminal guilt, are not functions of the Senate.
Congress is neither a law enforcement nor a trial agency. Moreover, it bears stressing that no inquiry
is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress, i.e.
legislation. Investigations conducted solely to gather incriminatory evidence and "punish" those
investigated are indefensible. There is no Congressional power to expose for the sake of
exposure.49 In this regard, the pronouncement in Barenblatt v. United States50 is instructive, thus:

Broad as it is, the power is not, however, without limitations. Since Congress may only
investigate into the areas in which it may potentially legislate or appropriate, it cannot inquire
into matters which are within the exclusive province of one of the other branches of the
government. Lacking the judicial power given to the Judiciary, it cannot inquire into matters
 that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in
what exclusively belongs to the Executive. (Emphasis supplied.)

At this juncture, it is important to stress that complaints relating to the NBN Project have already
been filed against President Arroyo and other personalities before the Office of the Ombudsman.
Under our Constitution, it is the Ombudsman who has the duty "to investigate any act or omission
of any public official, employee, office or agency when such act or omission appears to be
illegal, unjust, improper, or inefficient."51 The Office of the Ombudsman is the body properly
equipped by the Constitution and our laws to preliminarily determine whether or not the allegations
of anomaly are true and who are liable therefor. The same holds true for our courts upon which the
Constitution reposes the duty to determine criminal guilt with finality. Indeed, the rules of procedure
in the Office of the Ombudsman and the courts are well-defined and ensure that the
constitutionally guaranteed rights of all persons, parties and witnesses alike, are protected
and safeguarded.

Should respondent Committees uncover information related to a possible crime in the course of their
investigation, they have the constitutional duty to refer the matter to the appropriate agency or
branch of government. Thus, the Legislatures need for information in an investigation of graft and
corruption cannot be deemed compelling enough to pierce the confidentiality of information validly
covered by executive privilege. As discussed above, the Legislature can still legislate on graft and
corruption even without the information covered by the three (3) questions subject of the petition.

Corollarily, respondent Committees justify their rejection of petitioners claim of executive privilege on
the ground that there is no privilege when the information sought might involve a crime or illegal
activity,despite the absence of an administrative or judicial determination to that effect.
Significantly, however, in Nixon v. Sirica,52 the showing required to overcome the presumption
favoring confidentiality turned, not on the nature of the presidential conduct that the
subpoenaed material might reveal, but, instead, on the nature and appropriateness of the
function in the performance of which the material was sought, and the degree to which the
material was necessary to its fulfillment.

Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v.
Nixon does not apply to the case at bar because, unlike in the said case, no impeachment
proceeding has been initiated at present. The Court is not persuaded. While it is true that no
impeachment proceeding has been initiated, however, complaints relating to the NBN Project have
already been filed against President Arroyo and other personalities before the Office of the
Ombudsman. As the Court has said earlier, the prosecutorial and judicial arms of government are
the bodies equipped and mandated by the Constitution and our laws to determine whether or not the
allegations of anomaly in the NBN Project are true and, if so, who should be prosecuted and
penalized for criminal conduct.

Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence
essential to arrive at accurate factual findings to which to apply the law. Hence, Section 10 of the
Senate Rules of Procedure Governing Inquiries in Aid of Legislation provides that "technical rules of
evidence applicable to judicial proceedings which do not affect substantive rights need not be
observed by the Committee." Court rules which prohibit leading, hypothetical, or repetitive questions
or questions calling for a hearsay answer, to name a few, do not apply to a legislative inquiry. Every
person, from the highest public official to the most ordinary citizen, has the right to be presumed
innocent until proven guilty in proper proceedings by a competent court or body.

IV
 Respondent Committees Committed Grave
Abuse of Discretion in Issuing the Contempt Order

Respondent Committees insist that they did not commit grave abuse of discretion in issuing the
contempt order because (1) there is no legitimate claim of executive privilege; (2) they did not violate
the requirements laid down in Senate v. Ermita; (3) they issued the contempt order in accordance
with their internal Rules; (4) they did not violate the requirement under Article VI, Section 21 of the
Constitution requiring the publication of their Rules; and (5) their issuance of the contempt order is
not arbitrary or precipitate.

We reaffirm our earlier ruling.

The legitimacy of the claim of executive privilege having been fully discussed in the preceding
pages, we see no reason to discuss it once again.

Respondent Committees second argument rests on the view that the ruling in Senate v. Ermita,
requiring invitations or subpoenas to contain the "possible needed statute which prompted the need
for the inquiry" along with the "usual indication of the subject of inquiry and the questions relative to
and in furtherance thereof" is not provided for by the Constitution and is merely an obiter dictum.

On the contrary, the Court sees the rationale and necessity of compliance with these requirements.

An unconstrained congressional investigative power, like an unchecked Executive, generates its own
abuses. Consequently, claims that the investigative power of Congress has been abused (or has the
potential for abuse) have been raised many times.53 Constant exposure to congressional subpoena
takes its toll on the ability of the Executive to function effectively. The requirements set forth
in Senate v. Ermita are modest mechanisms that would not unduly limit Congress power. The
legislative inquiry must be confined to permissible areas and thus, prevent the "roving commissions"
referred to in the U.S. case,Kilbourn v. Thompson.54 Likewise, witnesses have their constitutional
right to due process. They should be adequately informed what matters are to be covered by the
inquiry. It will also allow them to prepare the pertinent information and documents. To our mind,
these requirements concede too little political costs or burdens on the part of Congress when viewed
vis--vis the immensity of its power of inquiry. The logic of these requirements is well articulated in
the study conducted by William P. Marshall,55 to wit:

A second concern that might be addressed is that the current system allows committees to
continually investigate the Executive without constraint. One process solution addressing
this concern is to require each investigation be tied to a clearly stated purpose. At
present, the charters of some congressional committees are so broad that virtually any
matter involving the Executive can be construed to fall within their province. Accordingly,
investigations can proceed without articulation of specific need or purpose. A requirement for
a more precise charge in order to begin an inquiry should immediately work to limit the initial
scope of the investigation and should also serve to contain the investigation once it is
instituted. Additionally, to the extent clear statements of rules cause legislatures to
pause and seriously consider the constitutional implications of proposed courses of
action in other areas, they would serve that goal in the context of congressional
investigations as well.

The key to this reform is in its details. A system that allows a standing committee to
simply articulate its reasons to investigate pro forma does no more than imposes
minimal drafting burdens. Rather, the system must be designed in a manner that
imposes actual burdens on the committee to articulate its need for investigation and
 allows for meaningful debate about the merits of proceeding with the
investigation. (Emphasis supplied)

Clearly, petitioners request to be furnished an advance copy of questions is a reasonable demand

that should have been granted by respondent Committees.

Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific
reference to any pending Senate bill. It did not also inform petitioner of the questions to be asked. As
it were, the subpoena merely commanded him to "testify on what he knows relative to the subject
matter under inquiry."

Anent the third argument, respondent Committees contend that their Rules of Procedure Governing
Inquiries in Aid of Legislation (the "Rules") are beyond the reach of this Court. While it is true that
this Court must refrain from reviewing the internal processes of Congress, as a co-equal branch of
government, however, when a constitutional requirement exists, the Court has the duty to look into
Congress compliance therewith. We cannot turn a blind eye to possible violations of the Constitution
simply out of courtesy. In this regard, the pronouncement in Arroyo v. De Venecia56 is enlightening,
thus:

"Cases both here and abroad, in varying forms of expression, all deny to the courts the
power to inquire into allegations that, in enacting a law, a House of Congress failed to
comply with its own rules, in the absence of showing that there was a violation of a
constitutional provision or the rights of private individuals.

United States v. Ballin, Joseph & Co., the rule was stated thus: The Constitution empowers
each House to determine its rules of proceedings. It may not by its rules ignore
constitutional restraints or violate fundamental rights, and there should be a
reasonable relation between the mode or method of proceeding established by the
rule and the result which is sought to be attained."

In the present case, the Courts exercise of its power of judicial review is warranted because there
appears to be a clear abuse of the power of contempt on the part of respondent Committees.
Section 18 of the Rules provides that:

"The Committee, by a vote of majority of all its members, may punish for contempt any
witness before it who disobey any order of the Committee or refuses to be sworn or to testify
or to answer proper questions by the Committee or any of its members." (Emphasis
supplied)

In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt
order because during the deliberation of the three (3) respondent Committees, only seven (7)
Senators were present. This number could hardly fulfill the majority requirement needed by
respondent Committee on Accountability of Public Officers and Investigations which has a
membership of seventeen (17) Senators and respondent Committee on National Defense and
Security which has a membership of eighteen (18) Senators. With respect to respondent Committee
on Trade and Commerce which has a membership of nine (9) Senators, only three (3) members
were present.57 These facts prompted us to quote in the Decision the exchanges between Senators
Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the issue of lack of the
required majority to deliberate and vote on the contempt order.
When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis
Pangilinan stated that any defect in the committee voting had been cured because two-thirds of the
Senators effectively signed for the Senate in plenary session.58

Obviously the deliberation of the respondent Committees that led to the issuance of the contempt
order is flawed. Instead of being submitted to a full debate by all the members of the respondent
Committees, the contempt order was prepared and thereafter presented to the other members for
signing. As a result, the contempt order which was issued on January 30, 2008 was not a faithful
representation of the proceedings that took place on said date. Records clearly show that not all of
those who signed the contempt order were present during the January 30, 2008 deliberation when
the matter was taken up.

Section 21, Article VI of the Constitution states that:

The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of person appearing in or affected by such inquiries shall be
respected. (Emphasis supplied)

All the limitations embodied in the foregoing provision form part of the witness settled expectation. If
the limitations are not observed, the witness settled expectation is shattered. Here, how could there
be a majority vote when the members in attendance are not enough to arrive at such majority?
Petitioner has the right to expect that he can be cited in contempt only through a majority vote in a
proceeding in which the matter has been fully deliberated upon. There is a greater measure of
protection for the witness when the concerns and objections of the members are fully articulated in
such proceeding. We do not believe that respondent Committees have the discretion to set aside
their rules anytime they wish. This is especially true here where what is involved is the contempt
power. It must be stressed that the Rules are not promulgated for their benefit. More than anybody
else, it is the witness who has the highest stake in the proper observance of the Rules.

Having touched the subject of the Rules, we now proceed to respondent Committees fourth
argument. Respondent Committees argue that the Senate does not have to publish its Rules
because the same was published in 1995 and in 2006. Further, they claim that the Senate is a
continuing body; thus, it is not required to republish the Rules, unless the same is repealed or
amended.

On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification.
Certainly, there is no debate that the Senate as an institution is "continuing", as it is not dissolved
as an entity with each national election or change in the composition of its members. However, in the
conduct of its day-to-day business the Senate of each Congress acts separately and independently
of the Senate of the Congress before it. The Rules of the Senate itself confirms this when it states:

RULE XLIV
UNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken up at the next
session in the same status.

All pending matters and proceedings shall terminate upon the expiration of one (1)
Congress, but may be taken by the succeeding Congress as if present for the first time.
(emphasis supplied)
Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and even
legislative investigations, of the Senate of a particular Congress are considered terminated upon
the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress
to take up such unfinished matters, not in the same status, but as if presented for the first time.
The logic and practicality of such a rule is readily apparent considering that the Senate of the
succeeding Congress (which will typically have a different composition as that of the previous
Congress) should not be bound by the acts and deliberations of the Senate of which they had no
part. If the Senate is a continuing body even with respect to the conduct of its business, then
pending matters will not be deemed terminated with the expiration of one Congress but will, as a
matter of course, continue into the next Congress with the same status.

This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the
conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senates main rules
of procedure) states:

RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES

SEC. 136. At the start of each session in which the Senators elected in the preceding
elections shall begin their term of office, the President may endorse the Rules to the
appropriate committee for amendment or revision.

The Rules may also be amended by means of a motion which should be presented at least
one day before its consideration, and the vote of the majority of the Senators present in the
session shall be required for its approval. (emphasis supplied)

RULE LII
DATE OF TAKING EFFECT

SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in
force until they are amended or repealed. (emphasis supplied)

Section 136 of the Senate Rules quoted above takes into account the new composition of the
Senate after an election and the possibility of the amendment or revision of the Rules at the start
of each session in which the newly elected Senators shall begin their term.

However, it is evident that the Senate has determined that its main rules are intended to be valid
from the date of their adoption until they are amended or repealed. Such language is conspicuously
absent from the Rules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after
publication in two (2) newspapers of general circulation." 59 The latter does not explicitly provide for
the continued effectivity of such rules until they are amended or repealed. In view of the difference in
the language of the two sets of Senate rules, it cannot be presumed that the Rules (on legislative
inquiries) would continue into the next Congress. The Senate of the next Congress may easily adopt
different rules for its legislative inquiries which come within the rule on unfinished business.

The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in
accordance with the duly published rules of procedure is categorical. It is incumbent upon the
Senate to publish the rules for its legislative inquiries in each Congress or otherwise make the
published rules clearly state that the same shall be effective in subsequent Congresses or until they
are amended or repealed to sufficiently put public on notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in
the next Congress, it could have easily adopted the same language it had used in its main rules
regarding effectivity.

Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or
proceedings conducted pursuant to the subject Rules are null and void. Only those that result in
violation of the rights of witnesses should be considered null and void, considering that the rationale
for the publication is to protect the rights of witnesses as expressed in Section 21, Article VI of the
Constitution. Sans such violation, orders and proceedings are considered valid and effective.

Respondent Committees last argument is that their issuance of the contempt order is not precipitate
or arbitrary. Taking into account the totality of circumstances, we find no merit in their argument.

As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of
respondent Committees, petitioner did not assume that they no longer had any other questions for
him. He repeatedly manifested his willingness to attend subsequent hearings and respond to new
matters. His only request was that he be furnished a copy of the new questions in advance to enable
him to adequately prepare as a resource person. He did not attend the November 20, 2007 hearing
because Executive Secretary Ermita requested respondent Committees to dispense with his
testimony on the ground of executive privilege. Note that petitioner is an executive official under the
direct control and supervision of the Chief Executive. Why punish petitioner for contempt when he
was merely directed by his superior? Besides, save for the three (3) questions, he was very
cooperative during the September 26, 2007 hearing.

On the part of respondent Committees, this Court observes their haste and impatience. Instead of
ruling on Executive Secretary Ermitas claim of executive privilege, they curtly dismissed it as
unsatisfactory and ordered the arrest of petitioner. They could have informed petitioner of their ruling
and given him time to decide whether to accede or file a motion for reconsideration. After all, he is
not just an ordinary witness; he is a high- ranking official in a co-equal branch of government. He is
an alter ego of the President. The same haste and impatience marked the issuance of the contempt
order, despite the absence of the majority of the members of the respondent Committees, and their
subsequent disregard of petitioners motion for reconsideration alleging the pendency of his petition
for certiorari before this Court.

On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are
political branches of government. In a free and democratic society, the interests of these branches
inevitably clash, but each must treat the other with official courtesy and respect. This Court
wholeheartedly concurs with the proposition that it is imperative for the continued health of our
democratic institutions that we preserve the constitutionally mandated checks and balances among
the different branches of government.

In the present case, it is respondent Committees contention that their determination on the validity of
executive privilege should be binding on the Executive and the Courts. It is their assertion
that theirinternal procedures and deliberations cannot be inquired into by this Court supposedly in
accordance with the principle of respect between co-equal branches of government. Interestingly, it
is a courtesy that they appear to be unwilling to extend to the Executive (on the matter of executive
privilege) or this Court (on the matter of judicial review). It moves this Court to wonder: In respondent
Committees paradigm of checks and balances, what are the checks to the Legislatures all-
encompassing, awesome power of investigation? It is a power, like any other, that is susceptible to
grave abuse.
While this Court finds laudable the respondent Committees well-intentioned efforts to ferret out
corruption, even in the highest echelons of government, such lofty intentions do not validate or
accord to Congress powers denied to it by the Constitution and granted instead to the other
branches of government.

There is no question that any story of government malfeasance deserves an inquiry into its veracity.
As respondent Committees contend, this is founded on the constitutional command of transparency
and public accountability. The recent clamor for a "search for truth" by the general public, the
religious community and the academe is an indication of a concerned citizenry, a nation that
demands an accounting of an entrusted power. However, the best venue for this noble undertaking
is not in the political branches of government. The customary partisanship and the absence of
generally accepted rules on evidence are too great an obstacle in arriving at the truth or achieving
justice that meets the test of the constitutional guarantee of due process of law. We believe the
people deserve a more exacting "search for truth" than the process here in question, if that is its
objective.

WHEREFORE, respondent Committees Motion for Reconsideration dated April 8, 2008 is

herebyDENIED.

SO ORDERED.

Article 4 (Full Text Cases)

Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 164815 September 3, 2009

SR. INSP. JERRY C. VALEROSO, Petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.

RESOLUTION

NACHURA, J.:

For resolution is the Letter-Appeal1 of Senior Inspector (Sr. Insp.) Jerry C. Valeroso (Valeroso)
praying that our February 22, 2008 Decision2 and June 30, 2008 Resolution3 be set aside and a new
one be entered acquitting him of the crime of illegal possession of firearm and ammunition.

The facts are briefly stated as follows:

Valeroso was charged with violation of Presidential Decree No. 1866, committed as follows:
That on or about the 10th day of July, 1996, in Quezon City, Philippines, the said accused without
any authority of law, did then and there willfully, unlawfully and knowingly have in his/her possession
and under his/her custody and control

One (1) cal. 38 "Charter Arms" revolver bearing serial no. 52315 with five (5) live ammo.

without first having secured the necessary license/permit issued by the proper authorities.

CONTRARY TO LAW.4

When arraigned, Valeroso pleaded "not guilty."5 Trial on the merits ensued.

During trial, the prosecution presented two witnesses: Senior Police Officer (SPO)2 Antonio
Disuanco (Disuanco) of the Criminal Investigation Division of the Central Police District Command;
and Epifanio Deriquito (Deriquito), Records Verifier of the Firearms and Explosives Division in Camp
Crame. Their testimonies are summarized as follows:

On July 10, 1996, at around 9:30 a.m., Disuanco received a Dispatch Order from the desk officer
directing him and three (3) other policemen to serve a Warrant of Arrest, issued by Judge Ignacio
Salvador, against Valeroso for a case of kidnapping with ransom. 6

After a briefing, the team conducted the necessary surveillance on Valeroso checking his hideouts in
Cavite, Caloocan, and Bulacan. Eventually, the team members proceeded to the Integrated National
Police (INP) Central Police Station in Culiat, Quezon City, where they saw Valeroso about to board a
tricyle. Disuanco and his team approached Valeroso. They put him under arrest, informed him of his
constitutional rights, and bodily searched him. They found a Charter Arms revolver, bearing Serial
No. 52315, with five (5) pieces of live ammunition, tucked in his waist.7

Valeroso was then brought to the police station for questioning. Upon verification in the Firearms and
Explosives Division in Camp Crame, Deriquito presented a certification 8 that the subject firearm was
not issued to Valeroso, but was licensed in the name of a certain Raul Palencia Salvatierra of
Sampaloc, Manila.9

On the other hand, Valeroso, SPO3 Agustin R. Timbol, Jr. (Timbol), and Adrian Yuson testified for the
defense. Their testimonies are summarized as follows:

On July 10, 1996, Valeroso was sleeping inside a room in the boarding house of his children located
at Sagana Homes, Barangay New Era, Quezon City. He was awakened by four (4) heavily armed
men in civilian attire who pointed their guns at him and pulled him out of the room. 10 The raiding team
tied his hands and placed him near the faucet (outside the room) then went back inside, searched
and ransacked the room. Moments later, an operative came out of the room and exclaimed, "Hoy,
may nakuha akong baril sa loob!"11

Disuanco informed Valeroso that there was a standing warrant for his arrest. However, the raiding
team was not armed with a search warrant.12

Timbol testified that he issued to Valeroso a Memorandum Receipt13 dated July 1, 1993 covering the
subject firearm and its ammunition, upon the verbal instruction of Col. Angelito Moreno. 14

On May 6, 1998, the Regional Trial Court (RTC), Branch 97, Quezon City, convicted Valeroso as
charged and sentenced him to suffer the indeterminate penalty of four (4) years, two (2) months and
one (1) day, as minimum, to six (6) years, as maximum. The gun subject of the case was further
ordered confiscated in favor of the government.15

On appeal, the Court of Appeals (CA) affirmed16 the RTC decision but the minimum term of the
indeterminate penalty was lowered to four (4) years and two (2) months.

On petition for review, we affirmed17 in full the CA decision. Valeroso filed a Motion for
Reconsideration18 which was denied with finality19 on June 30, 2008.

Valeroso is again before us through this Letter-Appeal 20 imploring this Court to once more take a
contemplative reflection and deliberation on the case, focusing on his breached constitutional rights
against unreasonable search and seizure.21

Meanwhile, as the Office of the Solicitor General (OSG) failed to timely file its Comment on
Valerosos Motion for Reconsideration, it instead filed a Manifestation in Lieu of Comment. 22

In its Manifestation, the OSG changed its previous position and now recommends Valerosos
acquittal. After a second look at the evidence presented, the OSG considers the testimonies of the
witnesses for the defense more credible and thus concludes that Valeroso was arrested in a
boarding house. More importantly, the OSG agrees with Valeroso that the subject firearm was
obtained by the police officers in violation of Valerosos constitutional right against illegal search and
seizure, and should thus be excluded from the evidence for the prosecution. Lastly, assuming that
the subject firearm was admissible in evidence, still, Valeroso could not be convicted of the crime,
since he was able to establish his authority to possess the gun through the Memorandum Receipt
issued by his superiors.

After considering anew Valerosos arguments through his Letter-Appeal, together with the OSGs
position recommending his acquittal, and keeping in mind that substantial rights must ultimately
reign supreme over technicalities, this Court is swayed to reconsider.23

The Letter-Appeal is actually in the nature of a second motion for reconsideration. While a second
motion for reconsideration is, as a general rule, a prohibited pleading, it is within the sound discretion
of the Court to admit the same, provided it is filed with prior leave whenever substantive justice may
be better served thereby.24

This is not the first time that this Court is suspending its own rules or excepting a particular case
from the operation of the rules. In De Guzman v. Sandiganbayan,25 despite the denial of De
Guzmans motion for reconsideration, we still entertained his Omnibus Motion, which was actually a
second motion for reconsideration. Eventually, we reconsidered our earlier decision and remanded
the case to the Sandiganbayan for reception and appreciation of petitioners evidence. In that case,
we said that if we would not compassionately bend backwards and flex technicalities, petitioner
would surely experience the disgrace and misery of incarceration for a crime which he might not
have committed after all.26 Also in Astorga v. People,27 on a second motion for reconsideration, we
set aside our earlier decision, re-examined the records of the case, then finally acquitted Benito
Astorga of the crime of Arbitrary Detention on the ground of reasonable doubt. And in Sta. Rosa
Realty Development Corporation v. Amante,28 by virtue of the January 13, 2004 En Banc Resolution,
the Court authorized the Special First Division to suspend the Rules, so as to allow it to consider and
resolve respondents second motion for reconsideration after the motion was heard on oral
arguments. After a re-examination of the merits of the case, we granted the second motion for
reconsideration and set aside our earlier decision.
Clearly, suspension of the rules of procedure, to pave the way for the re-examination of the findings
of fact and conclusions of law earlier made, is not without basis.

We would like to stress that rules of procedure are merely tools designed to facilitate the attainment
of justice. They are conceived and promulgated to effectively aid the courts in the dispensation of
justice. Courts are not slaves to or robots of technical rules, shorn of judicial discretion. In rendering
justice, courts have always been, as they ought to be, conscientiously guided by the norm that, on
the balance, technicalities take a backseat to substantive rights, and not the other way around. Thus,
if the application of the Rules would tend to frustrate rather than to promote justice, it would always
be within our power to suspend the rules or except a particular case from its operation. 29

Now on the substantive aspect.

The Court notes that the version of the prosecution, as to where Valeroso was arrested, is different
from the version of the defense. The prosecution claims that Valeroso was arrested near the INP
Central Police Station in Culiat, Quezon City, while he was about to board a tricycle. After placing
Valeroso under arrest, the arresting officers bodily searched him, and they found the subject firearm
and ammunition. The defense, on the other hand, insists that he was arrested inside the boarding
house of his children. After serving the warrant of arrest (allegedly for kidnapping with ransom),
some of the police officers searched the boarding house and forcibly opened a cabinet where they
discovered the subject firearm.

After a thorough re-examination of the records and consideration of the joint appeal for acquittal by
Valeroso and the OSG, we find that we must give more credence to the version of the defense.

Valerosos appeal for acquittal focuses on his constitutional right against unreasonable search and
seizure alleged to have been violated by the arresting police officers; and if so, would render the
confiscated firearm and ammunition inadmissible in evidence against him.

The right against unreasonable searches and seizures is secured by Section 2, Article III of the
Constitution which states:

SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

From this constitutional provision, it can readily be gleaned that, as a general rule, the procurement
of a warrant is required before a law enforcer can validly search or seize the person, house, papers,
or effects of any individual.30

To underscore the significance the law attaches to the fundamental right of an individual against
unreasonable searches and seizures, the Constitution succinctly declares in Article III, Section 3(2),
that "any evidence obtained in violation of this or the preceding section shall be inadmissible in
evidence for any purpose in any proceeding."31

The above proscription is not, however, absolute. The following are the well-recognized instances
where searches and seizures are allowed even without a valid warrant:
 1. Warrantless search incidental to a lawful arrest;

2. [Seizure] of evidence in "plain view." The elements are: a) a prior valid intrusion based on
the valid warrantless arrest in which the police are legally present in the pursuit of their
official duties; b) the evidence was inadvertently discovered by the police who have the right
to be where they are; c) the evidence must be immediately apparent; and d) "plain view"
justified mere seizure of evidence without further search;

3. Search of a moving vehicle. Highly regulated by the government, the vehicles inherent
mobility reduces expectation of privacy especially when its transit in public thoroughfares
furnishes a highly reasonable suspicion amounting to probable cause that the occupant
committed a criminal activity;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk;

7. Exigent and emergency circumstances.32

8. Search of vessels and aircraft; [and]

9. Inspection of buildings and other premises for the enforcement of fire, sanitary and
building regulations.33

In the exceptional instances where a warrant is not necessary to effect a valid search or seizure,
what constitutes a reasonable or unreasonable search or seizure is purely a judicial question,
determinable from the uniqueness of the circumstances involved, including the purpose of the
search or seizure, the presence or absence of probable cause, the manner in which the search and
seizure was made, the place or thing searched, and the character of the articles procured. 34

In light of the enumerated exceptions, and applying the test of reasonableness laid down above, is
the warrantless search and seizure of the firearm and ammunition valid?

We answer in the negative.

For one, the warrantless search could not be justified as an incident to a lawful arrest. Searches and
seizures incident to lawful arrests are governed by Section 13, Rule 126 of the Rules of Court, which
reads:

SEC. 13. Search incident to lawful arrest. A person lawfully arrested may be searched for
dangerous weapons or anything which may have been used or constitute proof in the commission of
an offense without a search warrant.

We would like to stress that the scope of the warrantless search is not without limitations. In People
v. Leangsiri,35People v. Cubcubin, Jr.,36 and People v. Estella,37 we had the occasion to lay down the
parameters of a valid warrantless search and seizure as an incident to a lawful arrest.

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in
order to remove any weapon that the latter might use in order to resist arrest or effect his escape.
Otherwise, the officers safety might well be endangered, and the arrest itself frustrated. In addition,
it is entirely reasonable for the arresting officer to search for and seize any evidence on the
arrestees person in order to prevent its concealment or destruction. 38

Moreover, in lawful arrests, it becomes both the duty and the right of the apprehending officers to
conduct a warrantless search not only on the person of the suspect, but also in the permissible area
within the latters reach.39 Otherwise stated, a valid arrest allows the seizure of evidence or
dangerous weapons either on the person of the one arrested or within the area of his immediate
control.40 The phrase "within the area of his immediate control" means the area from within which he
might gain possession of a weapon or destructible evidence.41 A gun on a table or in a drawer in front
of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing
of the person arrested.42

In the present case, Valeroso was arrested by virtue of a warrant of arrest allegedly for kidnapping
with ransom. At that time, Valeroso was sleeping inside the boarding house of his children. He was
awakened by the arresting officers who were heavily armed. They pulled him out of the room, placed
him beside the faucet outside the room, tied his hands, and then put him under the care of
Disuanco.43 The other police officers remained inside the room and ransacked the locked
cabinet44 where they found the subject firearm and ammunition.45 With such discovery, Valeroso was
charged with illegal possession of firearm and ammunition.

From the foregoing narration of facts, we can readily conclude that the arresting officers served the
warrant of arrest without any resistance from Valeroso. They placed him immediately under their
control by pulling him out of the bed, and bringing him out of the room with his hands tied. To be
sure, the cabinet which, according to Valeroso, was locked, could no longer be considered as an
"area within his immediate control" because there was no way for him to take any weapon or to
destroy any evidence that could be used against him.

The arresting officers would have been justified in searching the person of Valeroso, as well as the
tables or drawers in front of him, for any concealed weapon that might be used against the former.
But under the circumstances obtaining, there was no comparable justification to search through all
the desk drawers and cabinets or the other closed or concealed areas in that room itself. 46

It is worthy to note that the purpose of the exception (warrantless search as an incident to a lawful
arrest) is to protect the arresting officer from being harmed by the person arrested, who might be
armed with a concealed weapon, and to prevent the latter from destroying evidence within reach.
The exception, therefore, should not be strained beyond what is needed to serve its purpose. 47 In the
case before us, search was made in the locked cabinet which cannot be said to have been within
Valerosos immediate control. Thus, the search exceeded the bounds of what may be considered as
an incident to a lawful arrest.48

Nor can the warrantless search in this case be justified under the "plain view doctrine."

The "plain view doctrine" may not be used to launch unbridled searches and indiscriminate seizures
or to extend a general exploratory search made solely to find evidence of defendants guilt. The
doctrine is usually applied where a police officer is not searching for evidence against the accused,
but nonetheless inadvertently comes across an incriminating object.49

As enunciated in People v. Cubcubin, Jr.50 and People v. Leangsiri:51

What the "plain view" cases have in common is that the police officer in each of them had a prior
justification for an intrusion in the course of which[,] he came inadvertently across a piece of
evidence incriminating the accused. The doctrine serves to supplement the prior justification
whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other
legitimate reason for being present unconnected with a search directed against the accused and
permits the warrantless seizure. Of course, the extension of the original justification is legitimate only
where it is immediately apparent to the police that they have evidence before them; the "plain view"
doctrine may not be used to extend a general exploratory search from one object to another until
something incriminating at last emerges.52

Indeed, the police officers were inside the boarding house of Valerosos children, because they were
supposed to serve a warrant of arrest issued against Valeroso. In other words, the police officers had
a prior justification for the intrusion. Consequently, any evidence that they would inadvertently
discover may be used against Valeroso. However, in this case, the police officers did not just
accidentally discover the subject firearm and ammunition; they actually searched for evidence
against Valeroso.

Clearly, the search made was illegal, a violation of Valerosos right against unreasonable search and
seizure. Consequently, the evidence obtained in violation of said right is inadmissible in evidence
against him. 1avvphi1

Unreasonable searches and seizures are the menace against which the constitutional guarantees
afford full protection. While the power to search and seize may at times be necessary for public
welfare, still it may be exercised and the law enforced without transgressing the constitutional rights
of the citizens, for no enforcement of any statute is of sufficient importance to justify indifference to
the basic principles of government. Those who are supposed to enforce the law are not justified in
disregarding the rights of an individual in the name of order. Order is too high a price to pay for the
loss of liberty.53

Because a warrantless search is in derogation of a constitutional right, peace officers who conduct it
cannot invoke regularity in the performance of official functions.54

The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their
rights as human beings, democracy cannot survive and government becomes meaningless. This
explains why the Bill of Rights, contained as it is in Article III of the Constitution, occupies a position
of primacy in the fundamental law way above the articles on governmental power. 55

Without the illegally seized firearm, Valerosos conviction cannot stand. There is simply no sufficient
evidence to convict him.56 All told, the guilt of Valeroso was not proven beyond reasonable doubt
measured by the required moral certainty for conviction. The evidence presented by the prosecution
was not enough to overcome the presumption of innocence as constitutionally ordained. Indeed, it
would be better to set free ten men who might probably be guilty of the crime charged than to convict
one innocent man for a crime he did not commit.57

With the foregoing disquisition, there is no more need to discuss the other issues raised by Valeroso.

One final note. The Court values liberty and will always insist on the observance of basic
constitutional rights as a condition sine qua non against the awesome investigative and prosecutory
powers of the government.58

WHEREFORE, in view of the foregoing, the February 22, 2008 Decision and June 30, 2008
Resolution are RECONSIDERED and SET ASIDE. Sr. Insp. Jerry Valeroso is hereby ACQUITTED of
illegal possession of firearm and ammunition.
SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 104528 January 18, 1996

PHILIPPINE NATIONAL BANK, petitioner,

vs.
OFFICE OF THE PRESIDENT, HOUSING AND LAND USE REGULATORY BOARD, ALFONSO
MAGLAYA, ANGELINA MAGLAYA P. REYES, JORGE C. BERNARDINO, CORAZON DE LEON,
VICTORIANO ACAYA, FLORENCIA CULTURA, MARIA CAMPOS, ERNESTO SARMIENTO
SANTIAGO TAMONAN, APOLONIA TADIAQUE, SIMEON DE LEON, NATIVIDAD J. CRUZ,
NATIVIDAD B. LORESCO, FELICIDAD GARCIA, ANA ANITA TAN, LUCAS SERVILLION, JOSE
NARAWAL, represented by their duly authorized Attorney-in-Fact, CORAZON DE LEON AND
SPOUSES LEOPOLDO AND CARMEN SEBASTIAN, respondents.

RESOLUTION

PANGANIBAN, J.:

May a buyer of a property at a foreclosure sale dispossess prior purchasers on installment of

individual lots therein, or compel them to pay again for the lots which they previously bought from the
defaulting mortgagor-subdivision developer, on the theory that P.D. 957, "The Subdivision and
Condominium Buyers' Protective Decree", is not applicable to the mortgage contract in question, the
same having been executed prior to the enactment of P.D. 957? This is the question confronting the
Court in this Petition challenging the Decision dated March 10, 1992 of the Office of the President of
the Philippines in O.P. Case No. 4249, signed by the Executive Secretary, Franklin M. Drilon, "by
authority of the President."

Private respondents were buyers on installment of subdivision lots from Marikina Village, Inc.
(represented by spouses Antonio and Susana Astudillo). Notwithstanding the land purchase
agreements it executed over said lots, the subdivision developer mortgaged the lots in favor of the
petitioner, Philippine National Bank. Unaware of this mortgage, private respondents duly complied
with their obligations as lot buyers and constructed their houses on the lots in question.

Subsequently, the subdivision developer defaulted and PNB foreclosed on the mortgage. As highest
bidder at the foreclosure sale, the bank became owner of the lots.

Acting on suits brought by private respondents (which were later consolidated), the HLURB Office of
Appeals, Adjudication and Legal Affairs (OAALA) in a decision rendered on October 28, 1988 ruled
that PNB - without prejudice to seeking relief against Marikina Village, Inc. - may collect from private
respondents only the "remaining amortizations, in accordance with the land purchase agreements
they had previously entered into with" Marikina Village, Inc., and cannot compel private respondents
to pay all over again for the lots they had already bought from said subdivision developer. On May 2,
1989, the Housing and Land Use Regulatory Board affirmed this decision. On March 10, 1992, the
Office of the President, invoking P.D. 957, likewise concurred with the HLURB. Hence, the present
recourse to this Court.

Under Revised Administrative Circular No. 1-95, "appeals from judgments or final orders of the . . .
Office of the President . . . may be taken to the Court of Appeals . . ." However, in order to hasten the
resolution of this case, which was deemed submitted for decision three years ago, the Court
resolved to make an exception to the said Circular in the interest of speedy justice.

Petitioner bank raised the following issues:

1. The Office of the President erred in applying P.D. 957 because said law was enacted only
on July 12, 1976, while the subject mortgage was executed on December 18, 1975; and

2. Petitioner Bank is not privy to the contracts between private respondents and mortgagor-
subdivision developer, hence, the Office of the President erred in ordering petitioner Bank to
accept private respondents' remaining amortizations and issue the corresponding titles after
payment thereof.

Normally, pursuant to Article 4 of the Civil Code, "(l)aws shall have no retroactive effect, unless the
contrary is provided." However, it is obvious and indubitable that P.D. 957 was intended to cover
even those real estate mortgages, like the one at issue here, executed prior to its enactment, and
such intent (as succinctly captured in the preamble quoted below) must be given effect if the
laudable purpose of protecting innocent purchasers is to be achieve:

WHEREAS, it is the policy of the State to afford its inhabitants the requirements of decent
human settlement and to provide them with ample opportunities for improving their quality of
life;

WHEREAS, numerous reports reveal that many real estate subdivision owners, developers,
operators, and/or sellers have reneged on their representations and, obligations to provide
and maintain properly subdivision roads, drainage, sewerage, water systems, lighting
systems, and other similar basic requirements, thus endangering the health and safety of
home and lot buyers;

WHEREAS, reports of alarming magnitude also show cases of swindling and fraudulent
manipulations perpetrated by unscrupulous subdivision and condominium sellers and
operators, such as failure to deliver titles to the buyers or titles free from liens and
encumbrances, and to pay real estate taxes, and fraudulent sales of the same subdivision
lots to different innocent purchasers for value;1 (Emphasis supplied).

While P.D. 957 did not expressly provide for retroactivity in its entirety, yet the same can be plainly
inferred from the unmistakable intent of the law to protect innocent lot buyers from scheming
subdivision developers. As between these small lot buyers and the gigantic financial institutions
which the developers deal with, it is obvious that the law - as an instrument of social justice - must
favors the weak. Indeed, the petitioner Bank had at its disposal vast resources with which it could
adequately protect its loan activities, and therefore is presumed to have conducted the usual "due
diligence" checking and ascertained (whether thru ocular inspection or other modes of investigation)
the actual status, condition, utilization and occupancy of the property offered as collateral. It could
not have been unaware that the property had been built on by small lot buyers. On the other hand,
private respondents obviously were powerless to discover the attempt of the land developer to
hypothecate the property being sold to them. It was precisely in order to deal with this kind of
situation that P.D. 957 was enacted, its very essence and intendment being to provide a protective
mantle over helpless citizens who may fall prey to the razzmatazz of what P.D. 957 termed
"unscrupulous subdivision and condominium sellers."

The intent of the law, as culled from its preamble and from the situation, circumstances and condition
it sought to remedy, must be enforced. Sutherland, in his well-known treatise on Statutory
Construction (quoted with approval by this Court in an old case of consequence, Ongsiako vs.
Gamboa2 ), says:

The intent of a statute is the law. If a statute is valid it is to have effect according to the
purpose and intent of the lawmaker. The intent is the vital part, the essence of the law, and
the primary rule of construction is to ascertain and give effect to the intent. The intention of
the legislature in enacting a law is the law itself, and must be enforced when ascertained,
although it may not be consistent with the strict letter of the statute. Courts will not follow the
letter of a statute when it leads away from the true intent and purpose of the legislature and
to conclusions inconsistent with the general purpose of the act. Intent is the spirit which gives
life to a legislative enactment. In construing statutes the proper course is to start out and
follow the true intent of the legislature and to adopt that sense which harmonizes best with
the context and promotes in the fullest manner the apparent policy and objects of the
legislature.3

Truly, this Court cannot allow the injustice that will be wrought by a strictly prospective application of
the law. Little people who have toiled for years through blood and tears would be deprived of their
homes through no fault of their own. As the Solicitor General, in his comment, argues:

Verily, if P.D. 957 were to exclude from its coverage the aforecited mortgage contract, the
vigorous regulation which P.D. 957 seeks to impose on unconscientious subdivision sellers
will be translated into a feeble exercise of police power just because the iron hand of the
State cannot particularly touch mortgage contracts badged with the fortunate accident of
having been constituted prior to the enactment of P.D. 957. Indeed, it would be illogical in the
extreme if P.D. 957 is to be given full force and effect and yet, the fraudulent practices and
manipulations it seeks to curb in the first instance can nevertheless be liberally perpetrated
precisely because P.D. 957 cannot be applied to existing antecedent mortgage contracts.
The legislative intent could not have conceivably permitted a loophole which all along works
to the prejudice of subdivision lot buyers (private respondents).4

Likewise noteworthy are certain provisions of P.D. 957, which themselves constitute strong
arguments in favor of the retroactivity of P.D. 957 as a whole. These are Sections 20, 2l and 23
thereof, which by their very terms have retroactive effect and will impact upon even those contracts
and transactions entered into prior to P.D. 957's enactment:

Sec. 20. Time of Completion. - Every owner or developer or shall construct and provide the
facilities, improvements, infrastructures and other forms of development, including water
supply and lighting facilities, which are offered and indicated in the approved subdivision or
condominiun plans, brochures, prospectus, printed matters, letters or in any form of
advertisement, within one year from the date of the issuance of the license for the
subdivision or condominium project or such other period of time as may be fixed by the
Authority.

Sec. 21. Sales Prior to Decree. - In cases of subdivision lots or condominium units sold or
disposed of prior to the effectivity of this Decree, it shall be incumbent upon the owner or
developer of the subdivision or condominium project to complete compliance with his or its
 obligations as provided in the preceding section within two years from the date of this
Decree unless otherwise extended by the Authority or unless an adequate performance bond
is filed in accordance with Section 6 hereof.

Failure of the owner or developer to comply with the obligations under this and the preceding
provisions shall constitute a violation punishable under Section 38 and 39 of this Decree.

Sec. 23. Non-Forfeiture of Payments. - No installment payment made by a buyer in a

subdivision or condominium project for, the lot or unit he contracted to buy shall be forfeited
in favor, of the owner or developer when the buyer, after, due notice to the owner or
developer, desist from further payment due to the failure of the owner or developer to
develop the subdivision or condominium project according to the approved plans and within
the time limit for complying with the same. Such buyer may, at this option, be reimbursed the
total amount paid including amortization interests but excluding delinquency interests, with
interest thereon at the legal rate. (emphasis supplied)

As for objections about a possible violation of the impairment clause, we find the following
statements of Justice Isagani Cruz enlightening and pertinent to the case at bench:

Despite the impairment clause, a contract valid at the time of its execution may be legally
modified or even completely invalidated by a subsequent law. If the law is a proper exercise
of the police power, it will prevail over the contract.

Into each contract are read the provisions of existing law and, always, a reservation of the
police power as long as the agreement deals with a matter, affecting the public welfare. Such
a contract, it has been held, suffers a congenital infirmity, and this is its susceptibility to
change by the legislature as a postulate of the legal order. 5

This Court ruled along similar lines in Juarez vs. Court of Appeals6 :

The petitioner complains that the retroactive application of the law would violate the
impairment clause. The argument does not impress. The impairment clause is now no longer
inviolate; in fact, there are many who now believe it, is an anachronism in the present-day
society. It was quite useful before in protecting the integrity of private agreements from
government meddling, but that was when such agreements did not affect the community in
general. They were indeed purely private agreements then. Any interference with them at
that time was really an unwarranted intrusion that could properly struck down.

But things are different now. More and more, the interests of the public have become
involved in what are supposed to be still private agreements, which have, as a result been
removed from the protection of the impairment clause. These agreements have come within
the embrace of the police power, that obtrusive protector of the public interest. It is a
ubiquitous policeman indeed. As long as the contract affects the public welfare one way or
another so as to require the interference of the State, then must the police power be
asserted, and prevail, over the clause.

The decision of the Court of Appeals in Breta and Hamor vs. Lao, et al.7 penned by then Court of
Appeals Associate Justice Jose A. R. Melo, now a respected member of this Court, is persuasive,
the factual circumstances therein being of great similarity to the antecedent facts of the case at
bench:
 Protection must be afforded small homeowners who toil and save if only to purchase on
installment a tiny home lot they can call their own. The consuming dream of every Filipino is
to be able to buy a lot, no matter how small, so that he may somehow build a house. It has,
however, been seen of late that these honest, hard-living individuals are taken advantage of,
with the delivery of titles delayed, the subdivision facilities, including the most essential such
as water installations not completed, or worse yet, as in the instant case, after almost
completing the payments for the property and after constructing a house, the buyer is
suddenly confronted by the stark reality, contrived or otherwise, in which another person
would now appear to be owner.

xxx xxx xxx

We cannot over emphasize the fact that the BANK cannot barefacedly argue that simply
because the title or titles offered as security were clean of any encumbrance or lien, that it
was thereby relieved of taking any other step to verify the over-reaching implications should
the subdivision be auctioned on foreclosure. The BANK could not have closed its eyes that it
was dealing over a subdivision where there were already houses constructed. Did it not
enter the mind of the responsible officers of the BANK that there may even be subdivision
residents who have almost completed their installment payments? (id., pp. 7 & 9).

By the foregoing citation, this Court, thus adopts by reference the foregoing as part of this Decision.

The real estate mortgage in the above cited case, although constituted in 1975 and outside the
beneficial aegis of P.D. 957, was struck down by the Court of Appeals which found in favor of
subdivision lot buyers when the rights of the latter clashed with the mortgagee bank's right to
foreclose the property. The Court of Appeals in that case upheld the decision of the trial court
declaring the real estate mortgage as null and void.

As to the second issue of non-privity, petitioner avers that, in view of the provisions of Article 1311 of
the Civil Code, PNB, being a "total stranger to the land purchase agreement," cannot be made to
take the developer's place.

We disagree, P.D. 957 being applicable, Section 18 of said law obliges petitioner Bank to accept the
payment of the remaining unpaid amortizations tendered by private respondents.

Sec. 18. Mortgages. - No mortgage on any unit or lot shall be made by the owner or
developer without prior written approval of the Authority, Such approval shall not be granted
unless it is shown that the proceeds of the mortgage loan shall be used for the development
of the condominium or subdivision project and effective measures have been provided to
ensure such utilization. The loan value of each lot or unit covered by the mortgage shall be
determined and the buyer thereof, if any, shall be notified before the release of the loan. The
buyer may, at his option, pay his installment for the lot or unit directly to the mortgagee who
shall apply the payments to the corresponding mortgage indebtedness secured by the
particular lot or unit being paid for, with a view to enabling said buyer to obtain title over the
lot or unit promptly after full payment thereof. (emphasis supplied)

Privity of contracts as a defense does not apply in this case for the law explicitly grants to the buyer
the option to pay the installment payment for his lot or unit directly to the mortgagee (petitioner),
which is required to apply such payments to reduce the corresponding portion of the mortgage
indebtedness secured by the particular lot or unit being paid for. And, as stated earlier, this is without
prejudice to petitioner Bank's seeking relief against the subdivision developer.
Finally, before closing this Resolution, we enjoin petitioner Bank to focus not only on the strictly legal
issues involved in this case but also to take another look at the larger issues including social justice
and the protection of human rights as enshrined in the Constitution; firstly, because legal issues are
raised and decided not in a vacuum but within the context of existing social, economic and political
conditions, law being merely a brick in the up- building of the social edifice; and secondly, petitioner,
being THE state bank, is for all intents and purposes an instrument for the implementation of state
policies so cherished in our fundamental law. These consideration are obviously far more weighty
than the winning of any particular suit or the acquisition of any specific property. Thus, as the country
strives to move ahead towards economic self-sufficiency and to achieve dreams of "NIC-hood" and
social well-being for the majority of our countrymen, we hold that petitioner Bank, the premier bank
in the country, which has in recent years made record earnings and acquired an enviable
international stature, with branches and subsidiaries in key financial centers around the world,
should be equally as happy with the disposition of this case as the private respondents, who were
almost deprived and dispossessed of their very homes purchased through their hard work and with
their meager savings.

WHEREFORE, in view of the foregoing considerations, the petition is hereby DENIED, petitioner
having failed to show any REVERSIBLE ERROR or GRAVE ABUSE OF DISCRETION in the
assailed decision. No costs.

SO ORDERED.

Narvasa, C.J., Davide Jr., Melo and Francisco, JJ., concur.

COMMISSIONER OF G.R. No. 168129

INTERNAL REVENUE,

Petitioner,
Present:

PUNO, C.J., Chairperson,

SANDOVAL-GUTIERREZ,

CORONA,
- versus -
AZCUNA, and

GARCIA, JJ.

PHILIPPINE HEALTH
CARE PROVIDERS, INC., Promulgated:
 Respondent.

April 24, 2007

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Review on Certiorari under Rule 45 of the 1997 Rules of
Civil Procedure, as amended, seeking to reverse the Decision[1] dated February 18, 2005 and
Resolution dated May 9, 2005 of the Court of Appeals (Fifteenth Division) in CA-G.R. SP No. 76449.

The factual antecedents of this case, as culled from the records, are:

The Philippine Health Care Providers, Inc., herein respondent, is a

corporation organized and existing under the laws of the Republic of the Philippines. Pursuant to its
Articles of Incorporation,[2] its primary purpose is To establish, maintain, conduct and operate a
prepaid group practice health care delivery system or a health maintenance organization to take
care of the sick and disabled persons enrolled in the health care plan and to provide for the
administrative, legal, and financial responsibilities of the organization.

On July 25, 1987, President Corazon C. Aquino issued Executive Order (E.O.) No. 273, amending
the National Internal Revenue Code of 1977 (Presidential Decree No. 1158) by imposing Value-
Added Tax (VAT) on the sale of goods and services. This E.O. took effect on January 1, 1988.

Before the effectivity of E.O. No. 273, or on December 10, 1987, respondent wrote the
Commissioner of Internal Revenue (CIR), petitioner, inquiring whether the services it provides to the
participants in its health care program are exempt from the payment of the VAT.

On June 8, 1988, petitioner CIR, through the VAT Review Committee of the Bureau of Internal
Revenue (BIR), issued VAT Ruling No. 231-88 stating that respondent, as a provider of medical
services, is exempt from the VAT coverage. This Ruling was subsequently confirmed by Regional
Director Osmundo G. Umali of Revenue Region No. 8 in a letter dated April 22, 1994.

Meanwhile, on January 1, 1996, Republic Act (R.A.) No. 7716 (Expanded VAT or E-VAT Law) took
effect, amending further the National Internal Revenue Code of 1977. Then on January 1, 1998, R.A.
No. 8424 (National Internal Revenue Code of 1997) became effective. This new Tax Code
substantially adopted and reproduced the provisions of E.O. No. 273 on VAT and R.A. No. 7716 on
E-VAT.

In the interim, on October 1, 1999, the BIR sent respondent a Preliminary Assessment Notice for
deficiency in its payment of the VAT and documentary stamp taxes (DST) for taxable years 1996 and
1997.

On October 20, 1999, respondent filed a protest with the BIR.

On January 27, 2000, petitioner CIR sent respondent a letter demanding payment of deficiency VAT
in the amount of P100,505,030.26 and DST in the amount of P124,196,610.92, or a total
of P224,702,641.18 for taxable years 1996 and 1997. Attached to the demand letter were four (4)
assessment notices.

On February 23, 2000, respondent filed another protest questioning the assessment notices.

Petitioner CIR did not take any action on respondents protests. Hence, on September 21, 2000,
respondent filed with the Court of Tax Appeals (CTA) a petition for review, docketed as CTA Case
No. 6166.

On April 5, 2002, the CTA rendered its Decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the instant Petition for Review is PARTIALLY GRANTED.
Petitioner is hereby ORDERED TO PAY the deficiency VAT amounting to P22,054,831.75 inclusive
of 25% surcharge plus 20% interest from January 20, 1997 until fully paid for the 1996 VAT
deficiency and P31,094,163.87 inclusive of 25% surcharge plus 20% interest from January 20, 1998
until paid for the 1997 VAT deficiency. Accordingly, VAT Ruling No. 231-88 is declared void and
without force and effect. The 1996 and 1997 deficiency DST assessment against petitioner is hereby
CANCELLED AND SET ASIDE. Respondent is ORDERED to DESIST from collecting the said DST
deficiency tax.

SO ORDERED.
Respondent filed a motion for partial reconsideration of the above judgment concerning its liability to
pay the deficiency VAT.

In its Resolution[3] dated March 23, 2003, the CTA granted respondents motion, thus:

WHEREFORE, in view of the foregoing, the instant Motion for Partial Reconsideration is GRANTED.
Accordingly, the VAT assessment issued by herein respondent against petitioner for the taxable
years 1996 and 1997 is hereby WITHDRAWN and SET ASIDE.

SO ORDERED.

The CTA held:

Moreover, this court adheres to its conclusion that petitioner is a service contractor subject to VAT
since it does not actually render medical service but merely acts as a conduit between the members
and petitioners accredited and recognized hospitals and clinics.

However, after a careful review of the facts of the case as well as the Law and jurisprudence
applicable, this court resolves to grant petitioners Motion for Partial Reconsideration. We are in
accord with the view of petitioner that it is entitled to the benefit of non-retroactivity of rulings
guaranteed under Section 246 of the Tax Code, in the absence of showing of bad faith on its
part. Section 246 of the Tax Code provides:

Sec. 246. Non-Retroactivity of Rulings. Any revocation, modification or reversal of any of the rules
and regulations promulgated in accordance with the preceding Sections or any of the rulings or
circulars promulgated by the Commissioner shall not be given retroactive application if the
revocation, modification or reversal will be prejudicial to the taxpayers, x x x.

Clearly, undue prejudice will be caused to petitioner if the revocation of VAT Ruling No. 231-88 will
be retroactively applied to its case. VAT Ruling No. 231-88 issued by no less than the respondent
itself has confirmed petitioners entitlement to VAT exemption under Section 103 of the Tax Code. In
saying so, respondent has actually broadened the scope of medical services to include the case of
the petitioner. This VAT ruling was even confirmed subsequently by Regional
Director Ormundo G. Umali in his letter dated April 22, 1994 (Exhibit M). Exhibit P, which served as
basis for the issuance of the said VAT ruling in favor of the petitioner sufficiently described the
business of petitioner and there is no way BIR could be misled by the said representation as to the
real nature of petitioners business. Such being the case, this court is convinced that petitioners
reliance on the said ruling is premised on good faith. The facts of the case do not show that
petitioner deliberately committed mistakes or omitted material facts when it obtained the said ruling
from the Bureau of Internal Revenue. Thus, in the absence of such proof, this court upholds the
application of Section 246 of the Tax Code. Consequently, the pronouncement made by the BIR in
VAT Ruling No. 231-88 as to the VAT exemption of petitioner should be upheld.

Petitioner seasonably filed with the Court of Appeals a petition for review, docketed as CA-G.R. SP
No. 76449.

In its Decision dated February 18, 2005, the Court of Appeals affirmed the CTA Resolution.

Petitioner CIR filed a motion for reconsideration, but it was denied by the appellate court in its
Resolution[4] dated May 9, 2005.

Hence, the instant petition for review on certiorari raising these two issues: (1) whether respondents
services are subject to VAT; and (2) whether VAT Ruling No. 231-88 exempting respondent from
payment of VAT has retroactive application.

On the first issue, respondent is contesting petitioners assessment of its VAT liabilities for taxable
years 1996 and 1997.

Section 102[5] of the National Internal Revenue Code of 1977, as amended by E.O. No. 273 (VAT
Law) and R.A. No. 7716 (E-VAT Law), provides:

SEC. 102. Value-added tax on sale of services and use or lease of properties. (a) Rate and base of
tax. There shall be levied, assessed and collected, a value-added tax equivalent to 10% of gross
receipts derived from the sale or exchange of services, including the use or lease of properties.

The phrase sale or exchange of service means the performance of all kinds of services in
the Philippines for a fee, remuneration or consideration, including those performed or rendered by
construction and service contractors x xx.

Section 103[6] of the same Code specifies the exempt transactions from the provision of Section 102,
thus:
SEC. 103. Exempt Transactions. The following shall be exempt from the value-added tax:

xxx

(l) Medical, dental, hospital and veterinary services except those rendered by professionals

xxx

The import of the above provision is plain. It requires no interpretation. It contemplates the
exemption from VAT of taxpayers engaged in the performance of medical, dental, hospital, and
veterinary services. In Commissioner of International Revenue v. Seagate Technology (Philippines),
[7]
we defined an exempt transaction as one involving goods or services which, by their nature, are
specifically listed in and expressly exempted from the VAT, under the Tax Code, without regard to the
tax status of the party in the transaction. In Commissioner of Internal Revenue v. Toshiba
Information Equipment (Phils.) Inc.,[8] we reiterated this definition.

In its letter to the BIR requesting confirmation of its VAT-exempt status, respondent described its
services as follows:

Under the prepaid group practice health care delivery system adopted by Health Care, individuals
enrolled in Health Cares health care program are entitled to preventive, diagnostic, and corrective
medical services to be dispensed by Health Cares duly licensed physicians, specialists, and other
professional technical staff participating in said group practice health care delivery system
established and operated by Health Care. Such medical services will be dispensed in a hospital or
clinic owned, operated, or accredited by Health Care. To be entitled to receive such medical services
from Health Care, an individual must enroll in Health Cares health care program and pay an annual
fee. Enrollment in Health Cares health care program is on a year-to-year basis and enrollees are
issued identification cards.

From the foregoing, the CTA made the following conclusions:

a) Respondent is not actually rendering medical service but merely acting as a conduit between
the members and their accredited and recognized hospitals and clinics.
b) It merely provides and arranges for the provision of pre-need health care services to its
members for a fixed prepaid fee for a specified period of time.

c) It then contracts the services of physicians, medical and dental practitioners, clinics and
hospitals to perform such services to its enrolled members; and

d) Respondent also enters into contract with clinics, hospitals, medical professionals and then
negotiates with them regarding payment schemes, financing and other procedures in the delivery of
health services.

We note that these factual findings of the CTA were neither modified nor reversed by the Court of
Appeals. It is a doctrine that findings of fact of the CTA, a special court exercising particular expertise
on the subject of tax, are generally regarded as final, binding, and conclusive upon this Court, more
so where these do not conflict with the findings of the Court of Appeals. [9] Perforce, as respondent
does not actually provide medical and/or hospital services, as provided under Section 103 on
exempt transactions, but merely arranges for the same, its services are not VAT-exempt.

Relative to the second issue, Section 246 of the 1997 Tax Code, as amended, provides that rulings,
circulars, rules and regulations promulgated by the Commissioner of Internal Revenue have no
retroactive application if to apply them would prejudice the taxpayer. The exceptions to this rule are:
(1) where the taxpayer deliberately misstates or omits material facts from his return or in any
document required of him by the Bureau of Internal Revenue; (2) where the facts subsequently
gathered by the Bureau of Internal Revenue are materially different from the facts on which the
ruling is based, or (3) where the taxpayer acted in bad faith.

We must now determine whether VAT Ruling No. 231-88 exempting respondent from paying its VAT
liabilities has retroactive application.

In its Resolution dated March 23, 2003, the CTA found that there is no showing that respondent
deliberately committed mistakes or omitted material facts when it obtained VAT Ruling No. 231-88
from the BIR. The CTA held that respondents letter which served as the basis for the VAT ruling
sufficiently described its business and there is no way the BIR could be misled by the said
representation as to the real nature of said business.

In sustaining the CTA, the Court of Appeals found that the failure of respondent to refer to itself as a
health maintenance organization is not an indication of bad faith or a deliberate attempt to make
false representations. As the term health maintenance organization did not as yet have any
particular significance for tax purposes, respondents failure to include a term that has yet to acquire
its present definition and significance cannot be equated with bad faith.

We agree with both the Tax Court and the Court of Appeals that respondent acted in good faith.
In Civil Service Commission v. Maala,[10] we described good faith as that state of mind denoting
honesty of intention and freedom from knowledge of circumstances which ought to put the holder
upon inquiry; an honest intention to abstain from taking any unconscientious advantage of another,
even through technicalities of law, together with absence of all information, notice, or benefit or belief
of facts which render transaction unconscientious.

According to the Court of Appeals, respondents failure to describe itself as a health maintenance
organization, which is subject to VAT, is not tantamount to bad faith. We note that the term health
maintenance organization was first recorded in the Philippine statute books only upon the passage
of The National Health Insurance Act of 1995 (Republic Act No. 7875). Section 4 (o) (3) thereof
defines a health maintenance organization as an entity that provides, offers, or arranges for
coverage of designated health services needed by plan members for a fixed prepaid
premium. Under this law, a health maintenance organization is one of the classes of a health care
provider.

It is thus apparent that when VAT Ruling No. 231-88 was issued in respondents favor, the term
health maintenance organization was yet unknown or had no significance for taxation
purposes.Respondent, therefore, believed in good faith that it was VAT exempt for the taxable years
1996 and 1997 on the basis of VAT Ruling No. 231-88.

In ABS-CBN Broadcasting Corp. v. Court of Tax Appeals,[11] this Court held that under Section 246 of
the 1997 Tax Code, the Commissioner of Internal Revenue is precluded from adopting a position
contrary to one previously taken where injustice would result to the taxpayer. Hence, where an
assessment for deficiency withholding income taxes was made, three years after a new BIR Circular
reversed a previous one upon which the taxpayer had relied upon, such an assessment was
prejudicial to the taxpayer. To rule otherwise, opined the Court, would be contrary to the tenets of
good faith, equity, and fair play.

This Court has consistently reaffirmed its ruling in ABS-CBN Broadcasting Corp. in the later cases
of Commissioner of Internal Revenue v. Borroughs, Ltd.,[12] Commissioner of Internal Revenue v.
Mega Gen. Mdsg. Corp.[13] Commissioner of Internal Revenue v. Telefunken Semiconductor
(Phils.) Inc.,[14] and Commissioner of Internal Revenue v. Court of Appeals.[15] The rule is that the BIR
rulings have no retroactive effect where a grossly unfair deal would result to the prejudice of the
taxpayer, as in this case.
More recently, in Commissioner of Internal Revenue v. Benguet Corporation,[16] wherein the taxpayer
was entitled to tax refunds or credits based on the BIRs own issuances but later was suddenly
saddled with deficiency taxes due to its subsequent ruling changing the category of the taxpayers
transactions for the purpose of paying its VAT, this Court ruled that applying such ruling retroactively
would be prejudicial to the taxpayer.

WHEREFORE, we DENY the petition and AFFIRM the assailed Decision and Resolution of the
Court of Appeals in CA-G.R. SP No. 76449. No costs.

SO ORDERED.

ARTICLE VI Cases

Republic of the Philippines

SUPREME COURT
Baguio City

FIRST DIVISION

G.R. No. 137873 April 20, 2001

D. M. CONSUNJI, INC., petitioner,

vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.

KAPUNAN, J.:

At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji, Inc.,
fell 14 floors from the Renaissance Tower, Pasig City to his death.

PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report
dated November 25, 1990, stating that:

x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where he
was pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at
around 2:15 p.m. of the same date.

Investigation disclosed that at the given time, date and place, while victim Jose A. Juego
together with Jessie Jaluag and Delso Destajo [were] performing their work as carpenter[s]
at the elevator core of the 14th floor of the Tower D, Renaissance Tower Building on board a
[p]latform made of channel beam (steel) measuring 4.8 meters by 2 meters wide with pinulid
plywood flooring and cable wires attached to its four corners and hooked at the 5 ton chain
block, when suddenly, the bolt or pin which was merely inserted to connect the chain block
 with the [p]latform, got loose xxx causing the whole [p]latform assembly and the victim to fall
down to the basement of the elevator core, Tower D of the building under construction
thereby crushing the victim of death, save his two (2) companions who luckily jumped out for
safety.

It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then
on board and performing work, fell. And the falling of the [p]latform was due to the removal or
getting loose of the pin which was merely inserted to the connecting points of the chain block
and [p]latform but without a safety lock.1

On May 9, 1991, Jose Juegos widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a
complaint for damages against the deceaseds employer, D.M. Consunji, Inc. The employer raised,
among other defenses, the widows prior availment of the benefits from the State Insurance Fund.

After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of
the RTC decision reads:

WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:

1. P50,000.00 for the death of Jose A. Juego.

2. P10,000.00 as actual and compensatory damages.

3. P464,000.00 for the loss of Jose A. Juegos earning capacity.

4. P100,000.00 as moral damages.

5. P20,000.00 as attorneys fees, plus the costs of suit.

SO ORDERED.2

On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.

D. M. Consunji now seeks the reversal of the CA decision on the following grounds:

THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS
ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE OF PETITIONER.

THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES

IPSA LOQUITOR[sic] IS APPLICABLE TO PROVE NEGLIGENCE ON THE PART
OF PETITIONER.

THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS

PRESUMED NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE, AND

THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT

PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL CODE. 3
Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible.
The CA ruled otherwise. It held that said report, being an entry in official records, is an exception to
the hearsay rule.

The Rules of Court provide that a witness can testify only to those facts which he knows of his
personal knowledge, that is, which are derived from his perception.4 A witness, therefore, may not
testify as what he merely learned from others either because he was told or read or heard the same.
Such testimony is considered hearsay and may not be received as proof of the truth of what he has
learned.5 This is known as the hearsay rule.

Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements.6

The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error
and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best
brought to light and exposed by the test of cross-examiantion. 7 The hearsay rule, therefore, excludes
evidence that cannot be tested by cross-examination.8

The Rules of Court allow several exceptions to the rule, 9 among which are entries in official records.
Section 44, Rule 130 provides:

Entries in official records made in the performance of his duty made in the performance of
his duty by a public officer of the Philippines, or by a person in the performance of a duty
specially enjoined by law areprima facie evidence of the facts therein stated.

In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice Moran,
enumerated the requisites for admissibility under the above rule:

(a) that the entry was made by a public officer or by another person specially enjoined by law
to do so;

(b) that it was made by the public officer in the performance of his duties, or by such other
person in the performance of a duty specially enjoined by law; and

(c) that the public officer or other person had sufficient knowledge of the facts by him stated,
which must have been acquired by him personally or through official information.

The CA held that the police report meets all these requisites. Petitioner contends that the last
requisite is not present.

The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial
court. InRodriguez vs. Court of Appeals,11 which involved a Fire Investigation Report, the officer who
signed the fire report also testified before the trial court. This Court held that the report was
inadmissible for the purpose of proving the truth of the statements contained in the report but
admissible insofar as it constitutes part of the testimony of the officer who executed the report.

x x x. Since Major Enriquez himself took the witness stand and was available for cross-
examination, the portions of the report which were of his personal knowledge or which
consisted of his perceptions and conclusions were not hearsay. The rest of the report, such
as the summary of the statements of the parties based on their sworn statements (which
were annexed to the Report) as well as the latter, having been included in the first purpose of
 the offer [as part of the testimony of Major Enriquez], may then be considered
as independently relevant statements which were gathered in the course of the investigation
and may thus be admitted as such, but not necessarily to prove the truth thereof. It has been
said that:

"Where regardless of the truth or falsity of a statement, the fact that it has been made
is relevant, the hearsay rule does not apply, but the statement may be shown.
Evidence as to the making of such statement is not secondary but primary, for the
statement itself may constitute a fact in issue, or be circumstantially relevant as to
the existence of such a fact."

When Major Enriquez took the witness stand, testified for petitioners on his Report and made
himself available for cross-examination by the adverse party, the Report, insofar as it proved
that certain utterances were made (but not their truth), was effectively removed from the
ambit of the aforementioned Section 44 of Rule 130. Properly understood, this section does
away with the testimony in open court of the officer who made the official record, considers
the matter as an exception to the hearsay rule and makes the entries in said official record
admissible in evidence as prima facie evidence of the facts therein stated. The underlying
reasons for this exceptionary rule are necessity and trustworthiness, as explained in Antillon
v. Barcelon.

The litigation is unlimited in which testimony by officials is daily needed; the

occasions in which the officials would be summoned from his ordinary duties to
declare as a witness are numberless. The public officers are few in whose daily work
something is not done in which testimony is not needed from official sources. Were
there no exception for official statements, hosts of officials would be found devoting
the greater part of their time to attending as witnesses in court or delivering
deposition before an officer. The work of administration of government and the
interest of the public having business with officials would alike suffer in consequence.
For these reasons, and for many others, a certain verity is accorded such
documents, which is not extended to private documents. (3 Wigmore on Evidence,
Sec. 1631).

The law reposes a particular confidence in public officers that it presumes they will
discharge their several trusts with accuracy and fidelity; and, therefore, whatever acts
they do in discharge of their duty may be given in evidence and shall be taken to be
true under such a degree of caution as to the nature and circumstances of each case
may appear to require.

It would have been an entirely different matter if Major Enriquez was not presented to testify
on his report. In that case the applicability of Section 44 of Rule 143 would have been ripe
for determination, and this Court would have agreed with the Court of Appeals that said
report was inadmissible since the aforementioned third requisite was not satisfied. The
statements given by the sources of information of Major Enriquez failed to qualify as "official
information," there being no showing that, at the very least, they were under a duty to give
the statements for record.

Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the
statements contained therein but is admissible insofar as it constitutes part of the testimony of PO3
Villanueva.
In any case, the Court holds that portions of PO3 Villanuevas testimony which were of his personal
knowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3
Villanueva had seen Juegos remains at the morgue, 12 making the latters death beyond dispute.
PO3 Villanueva also conducted an ocular inspection of the premises of the building the day after the
incident13 and saw the platform for himself.14 He observed that the platform was crushed15 and that it
was totally damaged.16 PO3 Villanueva also required Garcia and Fabro to bring the chain block to the
police headquarters. Upon inspection, he noticed that the chain was detached from the lifting
machine, without any pin or bolt.17

What petitioner takes particular exception to is PO3 Villanuevas testimony that the cause of the fall
of the platform was the loosening of the bolt from the chain block. It is claimed that such portion of
the testimony is mere opinion. Subject to certain exceptions,18 the opinion of a witness is generally
not admissible.19

Petitioners contention, however, loses relevance in the face of the application of res ipsa loquitur by
the CA. The effect of the doctrine is to warrant a presumption or inference that the mere fall of the
elevator was a result of the person having charge of the instrumentality was negligent. As a rule of
evidence, the doctrine of res ipsa loquituris peculiar to the law of negligence which recognizes
that prima facie negligence may be established without direct proof and furnishes a substitute for
specific proof of negligence.20

The concept of res ipsa loquitur has been explained in this wise:

While negligence is not ordinarily inferred or presumed, and while the mere happening of an
accident or injury will not generally give rise to an inference or presumption that it was due to
negligence on defendants part, under the doctrine of res ipsa loquitur, which means, literally,
the thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality
speaks for itself, the facts or circumstances accompanying an injury may be such as to raise
a presumption, or at least permit an inference of negligence on the part of the defendant, or
some other person who is charged with negligence.

x x x where it is shown that the thing or instrumentality which caused the injury complained of
was under the control or management of the defendant, and that the occurrence resulting in
the injury was such as in the ordinary course of things would not happen if those who had its
control or management used proper care, there is sufficient evidence, or, as sometimes
stated, reasonable evidence, in the absence of explanation by the defendant, that the injury
arose from or was caused by the defendants want of care. 21

One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent
or not available.22

The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of
the instrumentality which causes the injury either knows the cause of the accident or has the
best opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore
is compelled to allege negligence in general terms and to rely upon the proof of the
happening of the accident in order to establish negligence. The inference which the doctrine
permits is grounded upon the fact that the chief evidence of the true cause, whether culpable
or innocent, is practically accessible to the defendant but inaccessible to the injured person.

It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff,
without knowledge of the cause, reaches over to defendant who knows or should know the
cause, for any explanation of care exercised by the defendant in respect of the matter of
 which the plaintiff complains. The res ipsa loquitur doctrine, another court has said, is a rule
of necessity, in that it proceeds on the theory that under the peculiar circumstances in which
the doctrine is applicable, it is within the power of the defendant to show that there was no
negligence on his part, and direct proof of defendants negligence is beyond plaintiffs power.
Accordingly, some court add to the three prerequisites for the application of the res ipsa
loquitur doctrine the further requirement that for the res ipsa loquitur doctrine to apply, it must
appear that the injured party had no knowledge or means of knowledge as to the cause of
the accident, or that the party to be charged with negligence has superior knowledge or
opportunity for explanation of the accident.23

The CA held that all the requisites of res ipsa loquitur are present in the case at bar:

There is no dispute that appellees husband fell down from the 14th floor of a building to the
basement while he was working with appellants construction project, resulting to his death.
The construction site is within the exclusive control and management of appellant. It has a
safety engineer, a project superintendent, a carpenter leadman and others who are in
complete control of the situation therein. The circumstances of any accident that would occur
therein are peculiarly within the knowledge of the appellant or its employees. On the other
hand, the appellee is not in a position to know what caused the accident. Res ipsa loquitur is
a rule of necessity and it applies where evidence is absent or not readily available, provided
the following requisites are present: (1) the accident was of a kind which does not ordinarily
occur unless someone is negligent; (2) the instrumentality or agency which caused the injury
was under the exclusive control of the person charged with negligence; and (3) the injury
suffered must not have been due to any voluntary action or contribution on the part of the
person injured. x x x.

No worker is going to fall from the 14th floor of a building to the basement while performing
work in a construction site unless someone is negligent[;] thus, the first requisite for the
application of the rule of res ipsa loquitur is present. As explained earlier, the construction
site with all its paraphernalia and human resources that likely caused the injury is under the
exclusive control and management of appellant[;] thus[,] the second requisite is also present.
No contributory negligence was attributed to the appellees deceased husband[;] thus[,] the
last requisite is also present. All the requisites for the application of the rule of res ipsa
loquitur are present, thus a reasonable presumption or inference of appellants negligence
arises. x x x.24

Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but
argues that the presumption or inference that it was negligent did not arise since it "proved that it
exercised due care to avoid the accident which befell respondents husband."

Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
defendants negligence is presumed or inferred25 when the plaintiff establishes the requisites for the
application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements,
the burden then shifts to defendant to explain.26 The presumption or inference may be rebutted or
overcome by other evidence and, under appropriate circumstances disputable presumption, such as
that of due care or innocence, may outweigh the inference. 27 It is not for the defendant to explain or
prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of
say, due care, comes into play only after the circumstances for the application of the doctrine has
been established. 1wphi1.nt

In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before
the police investigator as evidence of its due care. According to Fabros sworn statement, the
company enacted rules and regulations for the safety and security of its workers. Moreover, the
leadman and the bodegero inspect the chain block before allowing its use.

It is ironic that petitioner relies on Fabros sworn statement as proof of its due care but, in arguing
that private respondent failed to prove negligence on the part of petitioners employees, also assails
the same statement for being hearsay.

Petitioner is correct. Fabros sworn statement is hearsay and inadmissible. Affidavits are
inadmissible as evidence under the hearsay rule, unless the affiant is placed on the witness stand to
testify thereon.28 The inadmissibility of this sort of evidence is based not only on the lack of
opportunity on the part of the adverse party to cross-examine the affiant, but also on the commonly
known fact that, generally, an affidavit is not prepared by the affiant himself but by another who uses
his own language in writing the affiants statements which may either be omitted or misunderstood
by the one writing them.29 Petitioner, therefore, cannot use said statement as proof of its due care
any more than private respondent can use it to prove the cause of her husbands death. Regrettably,
petitioner does not cite any other evidence to rebut the inference or presumption of negligence
arising from the application of res ipsa loquitur, or to establish any defense relating to the incident.

Next, petitioner argues that private respondent had previously availed of the death benefits provided
under the Labor Code and is, therefore, precluded from claiming from the deceaseds employer
damages under the Civil Code.

Article 173 of the Labor Code states:

Article 173. Extent of liability. Unless otherwise provided, the liability of the State Insurance
Fund under this Title shall be exclusive and in place of all other liabilities of the employer to
the employee, his dependents or anyone otherwise entitled to receive damages on behalf of
the employee or his dependents. The payment of compensation under this Title shall not bar
the recovery of benefits as provided for in Section 699 of the Revised Administrative Code,
Republic Act Numbered Eleven hundred sixty-one, as amended, Republic Act Numbered Six
hundred ten, as amended, Republic Act Numbered Forty-eight hundred sixty-four as
amended, and other laws whose benefits are administered by the System or by other
agencies of the government.

The precursor of Article 173 of the Labor Code, Section 5 of the Workmens Compensation Act,
provided that:

Section 5. Exclusive right to compensation. The rights and remedies granted by this Act to
an employee by reason of a personal injury entitling him to compensation shall exclude all
other rights and remedies accruing to the employee, his personal representatives,
dependents or nearest of kin against the employer under the Civil Code and other laws
because of said injury x x x.

Whether Section 5 of the Workmens Compensation Act allowed recovery under said Act as well as
under the Civil Code used to be the subject of conflicting decisions. The Court finally settled the
matter in Floresca vs.Philex Mining Corporation,30 which involved a cave-in resulting in the death of
the employees of the Philex Mining Corporation. Alleging that the mining corporation, in violation of
government rules and regulations, failed to take the required precautions for the protection of the
employees, the heirs of the deceased employees filed a complaint against Philex Mining in the Court
of First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the complaint for lack of
jurisdiction. The heirs sought relief from this Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En
Banc,31 following the rule in Pacaa vs. Cebu Autobus Company, held in the affirmative.

WE now come to the query as to whether or not the injured employee or his heirs in case of
death have a right of selection or choice of action between availing themselves of the
workers right under the Workmens Compensation Act and suing in the regular courts under
the Civil Code for higher damages (actual, moral and exemplary) from the employers by
virtue of the negligence or fault of the employers or whether they may avail themselves
cumulatively of both actions, i.e., collect the limited compensation under the Workmens
Compensation Act and sue in addition for damages in the regular courts.

In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus Company, 32 SCRA
442, ruled thatan injured worker has a choice of either to recover from the employer the fixed
amounts set by the Workmens Compensation Act or to prosecute an ordinary civil action
against the tortfeasor for higher damages but he cannot pursue both courses of action
simultaneously. [Underscoring supplied.]

Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under
the Civil Code despite having availed of the benefits provided under the Workmens Compensation
Act. The Court reasoned:

With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated
May 14, 1968 before the court a quo, that the heirs of the deceased employees, namely
Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices
and claims for compensation to the Regional Office No. 1 of the then Department of Labor
and all of them have been paid in full as of August 25, 1967, except Saturnino Martinez
whose heirs decided that they be paid in installments x x x. Such allegation was admitted by
herein petitioners in their opposition to the motion to dismiss dated may 27, 1968 x x x in the
lower court, but they set up the defense that the claims were filed under the Workmens
Compensation Act before they learned of the official report of the committee created to
investigate the accident which established the criminal negligence and violation of law by
Philex, and which report was forwarded by the Director of Mines to then Executive Secretary
Rafael Salas in a letter dated October 19, 1967 only x x x.

WE hold that although the other petitioners had received the benefits under the Workmens
Compensation Act, such my not preclude them from bringing an action before the regular
court because they became cognizant of the fact that Philex has been remiss in its
contractual obligations with the deceased miners only after receiving compensation under
the Act. Had petitioners been aware of said violation of government rules and regulations by
Philex, and of its negligence, they would not have sought redress under the Workmens
Compensation Commission which awarded a lesser amount for compensation. The choice of
the first remedy was based on ignorance or a mistake of fact, which nullifies the choice as it
was not an intelligent choice. The case should therefore be remanded to the lower court for
further proceedings. However, should the petitioners be successful in their bid before the
lower court, the payments made under the Workmens Compensation Act should be
deducted from the damages that may be decreed in their favor. [Underscoring supplied.]

The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime
Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining Corp. vs.
Abeleda.34 In the last case, the Court again recognized that a claimant who had been paid under the
Act could still sue under the Civil Code. The Court said:
 In the Robles case, it was held that claims for damages sustained by workers in the course
of their employment could be filed only under the Workmens Compensation Law, to the
exclusion of all further claims under other laws. In Floresca, this doctrine was abrogated in
favor of the new rule that the claimants may invoke either the Workmens Compensation Act
or the provisions of the Civil Code, subject to the consequence that the choice of one
remedy will exclude the other and that the acceptance of compensation under the remedy
chosen will preclude a claim for additional benefits under the other remedy. The exception is
where a claimant who has already been paid under the Workmens Compensation Act may
still sue for damages under the Civil Code on the basis of supervening facts or developments
occurring after he opted for the first remedy. (Underscoring supplied.)

Here, the CA held that private respondents case came under the exception because private
respondent was unaware of petitioners negligence when she filed her claim for death benefits from
the State Insurance Fund. Private respondent filed the civil complaint for damages after she received
a copy of the police investigation report and the Prosecutors Memorandum dismissing the criminal
complaint against petitioners personnel. While stating that there was no negligence attributable to
the respondents in the complaint, the prosecutor nevertheless noted in the Memorandum that, "if at
all," the "case is civil in nature." The CA thus applied the exception in Floresca:

x x x We do not agree that appellee has knowledge of the alleged negligence of appellant as
early as November 25, 1990, the date of the police investigators report. The appellee merely
executed her sworn statement before the police investigator concerning her personal
circumstances, her relation to the victim, and her knowledge of the accident. She did not file
the complaint for "Simple Negligence Resulting to Homicide" against appellants employees.
It was the investigator who recommended the filing of said case and his supervisor referred
the same to the prosecutors office. This is a standard operating procedure for police
investigators which appellee may not have even known. This may explain why no
complainant is mentioned in the preliminary statement of the public prosecutor in her
memorandum dated February 6, 1991, to wit: "Respondent Ferdinand Fabro x x x are being
charged by complainant of "Simple Negligence Resulting to Homicide." It is also possible
that the appellee did not have a chance to appear before the public prosecutor as can be
inferred from the following statement in said memorandum: "Respondents who were notified
pursuant to Law waived their rights to present controverting evidence," thus there was no
reason for the public prosecutor to summon the appellee. Hence, notice of appellants
negligence cannot be imputed on appellee before she applied for death benefits under ECC
or before she received the first payment therefrom. Her using the police investigation report
to support her complaint filed on May 9, 1991 may just be an afterthought after receiving a
copy of the February 6, 1991 Memorandum of the Prosecutors Office dismissing the criminal
complaint for insufficiency of evidence, stating therein that: "The death of the victim is not
attributable to any negligence on the part of the respondents. If at all and as shown by the
records this case is civil in nature." (Underscoring supplied.) Considering the foregoing, We
are more inclined to believe appellees allegation that she learned about appellants
negligence only after she applied for and received the benefits under ECC. This is a mistake
of fact that will make this case fall under the exception held in the Floresca ruling.35

The CA further held that not only was private respondent ignorant of the facts, but of her rights as
well:

x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her
educational attainment; that she did not know what damages could be recovered from the
death of her husband; and that she did not know that she may also recover more from
the Civil Code than from the ECC. x x x.36
Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her
complaint that her application and receipt of benefits from the ECC were attended by ignorance or
mistake of fact. Not being an issue submitted during the trial, the trial court had no authority to hear
or adjudicate that issue."

Petitioner also claims that private respondent could not have been ignorant of the facts because as
early as November 28, 1990, private respondent was the complainant in a criminal complaint for
"Simple Negligence Resulting to Homicide" against petitioners employees. On February 6, 1991,
two months before the filing of the action in the lower court, Prosecutor Lorna Lee issued a
resolution finding that, although there was insufficient evidence against petitioners employees, the
case was "civil in nature." These purportedly show that prior to her receipt of death benefits from the
ECC on January 2, 1991 and every month thereafter, private respondent also knew of the two
choices of remedies available to her and yet she chose to claim and receive the benefits from the
ECC.

When a party having knowledge of the facts makes an election between inconsistent remedies, the
election is final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the
absence of fraud by the other party. The first act of election acts as a bar.37 Equitable in nature, the
doctrine of election of remedies is designed to mitigate possible unfairness to both parties. It rests on
the moral premise that it is fair to hold people responsible for their choices. The purpose of the
doctrine is not to prevent any recourse to any remedy, but to prevent a double redress for a single
wrong.38

The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule
in Florescathat a claimant cannot simultaneously pursue recovery under the Labor Code and
prosecute an ordinary course of action under the Civil Code. The claimant, by his choice of one
remedy, is deemed to have waived the other.

Waiver is the intentional relinquishment of a known right.39

[It] is an act of understanding that presupposes that a party has knowledge of its rights, but
chooses not to assert them. It must be generally shown by the party claiming a waiver that
the person against whom the waiver is asserted had at the time knowledge, actual or
constructive, of the existence of the partys rights or of all material facts upon which they
depended. Where one lacks knowledge of a right, there is no basis upon which waiver of it
can rest. Ignorance of a material fact negates waiver, and waiver cannot be established by a
consent given under a mistake or misapprehension of fact.

A person makes a knowing and intelligent waiver when that person knows that a right exists
and has adequate knowledge upon which to make an intelligent decision.

Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an
awareness of its consequences. That a waiver is made knowingly and intelligently must be
illustrated on the record or by the evidence.40

That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception
in Floresca.

It is in light of the foregoing principles that we address petitioners contentions.

Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her
complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to
burden private respondent with raising waiver as an issue. On the contrary, it is the defendant who
ought to plead waiver, as petitioner did in pages 2-3 of its Answer; 41 otherwise, the defense is
waived. It is, therefore, perplexing for petitioner to now contend that the trial court had no jurisdiction
over the issue when petitioner itself pleaded waiver in the proceedings before the trial court.

Does the evidence show that private respondent knew of the facts that led to her husbands death
and the rights pertaining to a choice of remedies?

It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the
"fact" that served as a basis for nullifying the waiver is the negligence of petitioners employees, of
which private respondent purportedly learned only after the prosecutor issued a resolution stating
that there may be civil liability. InFloresca, it was the negligence of the mining corporation and
its violation of government rules and regulations. Negligence, or violation of government rules and
regulations, for that matter, however, is not a fact, but aconclusion of law, over which only the courts
have the final say. Such a conclusion binds no one until the courts have decreed so. It appears,
therefore, that the principle that ignorance or mistake of fact nullifies a waiver has been misapplied
in Floresca and in the case at bar.

In any event, there is no proof that private respondent knew that her husband died in the elevator
crash when on November 15, 1990 she accomplished her application for benefits from the ECC. The
police investigation report is dated November 25, 1990, 10 days after the accomplishment of the
form. Petitioner filed the application in her behalf on November 27, 1990.

There is also no showing that private respondent knew of the remedies available to her when the
claim before the ECC was filed. On the contrary, private respondent testified that she was not aware
of her rights.

Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one
from compliance therewith. As judicial decisions applying or interpreting the laws or the Constitution
form part of the Philippine legal system (Article 8, Civil Code), private respondent cannot claim
ignorance of this Courts ruling inFloresca allowing a choice of remedies.

The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory
laws.42 This may be deduced from the language of the provision, which, notwithstanding a persons
ignorance, does not excuse his or her compliance with the laws. The rule in Floresca allowing private
respondent a choice of remedies is neither mandatory nor prohibitory. Accordingly, her ignorance
thereof cannot be held against her.

Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the
total amount private respondent ought to receive from the ECC, although it appears from Exhibit
"K"43 that she received P3,581.85 as initial payment representing the accrued pension from
November 1990 to March 1991. Her initial monthly pension, according to the same Exhibit "K," was
P596.97 and present total monthly pension was P716.40. Whether the total amount she will
eventually receive from the ECC is less than the sum of P644,000.00 in total damages awarded by
the trial court is subject to speculation, and the case is remanded to the trial court for such
determination. Should the trial court find that its award is greater than that of the ECC, payments
already received by private respondent under the Labor Code shall be deducted from the trial court'
award of damages. Consistent with our ruling in Floresca, this adjudication aims to prevent double
compensation.
WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine
whether the award decreed in its decision is more than that of the ECC. Should the award decreed
by the trial court be greater than that awarded by the ECC, payments already made to private
respondent pursuant to the Labor Code shall be deducted therefrom. In all other respects, the
Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Davide, Jr., Puno, Pardo, and Ynares-Santiago, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-15127 May 30, 1961

EMETERIO CUI, plaintiff-appellant,

vs.
ARELLANO UNIVERSITY, defendant-appellee.

G.A.S. Sipin, Jr., for plaintiff-appellant.

E. Voltaire Garcia for defendant-appellee.

CONCEPCION, J.:

Appeal by plaintiff Emeterio Cui from a decision of the Court of First Instance of Manila, absolving
defendant Arellano University from plaintiff's complaint, with costs against the plaintiff, and
dismissing defendant's counter claim, for insufficiency of proof thereon.

In the language of the decision appealed from:

The essential facts of this case are short and undisputed. As established by the agreement
of facts Exhibits X and by the respective oral and documentary evidence introduced by the
parties, it appears conclusive that plaintiff, before the school year 1948-1949 took up
preparatory law course in the defendant University. After finishing his preparatory law course
plaintiff enrolled in the College of Law of the defendant from the school year 1948-1949.
Plaintiff finished his law studies in the defendant university up to and including the first
semester of the fourth year. During all the school years in which plaintiff was studying law in
defendant law college, Francisco R. Capistrano, brother of the mother of plaintiff, was the
dean of the College of Law and legal counsel of the defendant university. Plaintiff enrolled for
the last semester of his law studies in the defendant university but failed to pay his tuition
fees because his uncle Dean Francisco R. Capistrano having severed his connection with
defendant and having accepted the deanship and chancellorship of the College of Law of
Abad Santos University, plaintiff left the defendant's law college and enrolled for the last
semester of his fourth year law in the college of law of the Abad Santos University graduating
from the college of law of the latter university. Plaintiff, during all the time he was studying
law in defendant university was awarded scholarship grants, for scholastic merit, so that his
 semestral tuition fees were returned to him after the ends of semester and when his
scholarship grants were awarded to him. The whole amount of tuition fees paid by plaintiff to
defendant and refunded to him by the latter from the first semester up to and including the
first semester of his last year in the college of law or the fourth year, is in total P1,033.87.
After graduating in law from Abad Santos University he applied to take the bar examination.
To secure permission to take the bar he needed the transcripts of his records in defendant
Arellano University. Plaintiff petitioned the latter to issue to him the needed transcripts. The
defendant refused until after he had paid back the P1,033 87 which defendant refunded to
him as above stated. As he could not take the bar examination without those transcripts,
plaintiff paid to defendant the said sum under protest. This is the sum which plaintiff seeks to
recover from defendant in this case.

Before defendant awarded to plaintiff the scholarship grants as above stated, he was made
to sign the following contract covenant and agreement:

"In consideration of the scholarship granted to me by the University, I hereby waive my right
to transfer to another school without having refunded to the University (defendant) the
equivalent of my scholarship cash.

(Sgd.) Emeterio Cui".

It is admitted that, on August 16, 1949, the Director of Private Schools issued Memorandum No. 38,
series of 1949, on the subject of "Scholarship," addressed to "All heads of private schools, colleges
and universities," reading:

1. School catalogs and prospectuses submitted to this, Bureau show that some schools offer
full or partial scholarships to deserving students for excellence in scholarship or for
leadership in extra-curricular activities. Such inducements to poor but gifted students should
be encouraged. But to stipulate the condition that such scholarships are good only if the
students concerned continue in the same school nullifies the principle of merit in the award
of these scholarships.

2. When students are given full or partial scholarships, it is understood that such
scholarships are merited and earned. The amount in tuition and other fees corresponding to
these scholarships should not be subsequently charged to the recipient students when they
decide to quit school or to transfer to another institution. Scholarships should not be offered
merely to attract and keep students in a school.

3. Several complaints have actually been received from students who have enjoyed
scholarships, full or partial, to the effect that they could not transfer to other schools since
their credentials would not be released unless they would pay the fees corresponding to the
period of the scholarships. Where the Bureau believes that the right of the student to transfer
is being denied on this ground, it reserves the right to authorize such transfer.

that defendant herein received a copy of this memorandum; that plaintiff asked the Bureau of Private
Schools to pass upon the issue on his right to secure the transcript of his record in defendant
University, without being required to refund the sum of P1,033.87; that the Bureau of Private Schools
upheld the position taken by the plaintiff and so advised the defendant; and that, this
notwithstanding, the latter refused to issue said transcript of records, unless said refund were made,
and even recommended to said Bureau that it issue a written order directing the defendant to
release said transcript of record, "so that the case may be presented to the court for judicial action."
As above stated, plaintiff was, accordingly, constrained to pay, and did pay under protest, said sum
of P1,033.87, in order that he could take the bar examination in 1953. Subsequently, he brought this
action for the recovery of said amount, aside from P2,000 as moral damages, P500 as exemplary
damages, P2,000 as attorney's fees, and P500 as expenses of litigation.

In its answer, defendant reiterated the stand it took, vis-a-vis the Bureau of Private Schools, namely,
that the provisions of its contract with plaintiff are valid and binding and that the memorandum
above-referred to is null and void. It, likewise, set up a counterclaim for P10,000.00 as damages,
and P3,000 as attorney's fees.

The issue in this case is whether the above quoted provision of the contract between plaintiff and the
defendant, whereby the former waived his right to transfer to another school without refunding to the
latter the equivalent of his scholarships in cash, is valid or not. The lower court resolved this question
in the affirmative, upon the ground that the aforementioned memorandum of the Director of Private
Schools is not a law; that the provisions thereof are advisory, not mandatory in nature; and that,
although the contractual provision "may be unethical, yet it was more unethical for plaintiff to quit
studying with the defendant without good reasons and simply because he wanted to follow the
example of his uncle." Moreover, defendant maintains in its brief that the aforementioned
memorandum of the Director of Private Schools is null and void because said officer had no authority
to issue it, and because it had been neither approved by the corresponding department head nor
published in the official gazette.

We do not deem it necessary or advisable to consider as the lower court did, the question whether
plaintiff had sufficient reasons or not to transfer from defendant University to the Abad Santos
University. The nature of the issue before us, and its far reaching effects, transcend personal
equations and demand a determination of the case from a high impersonal plane. Neither do we
deem it essential to pass upon the validity of said Memorandum No. 38, for, regardless of the same,
we are of the opinion that the stipulation in question is contrary to public policy and, hence, null and
void. The aforesaid memorandum merely incorporates a sound principle of public policy. As the
Director of Private Schools correctly pointed, out in his letter, Exhibit B, to the defendant,

There is one more point that merits refutation and that is whether or not the contract entered
into between Cui and Arellano University on September 10, 1951 was void as against public
policy. In the case of Zeigel vs. Illinois Trust and Savings Bank, 245 Ill. 180, 19 Ann. Case
127, the court said: 'In determining a public policy of the state, courts are limited to a
consideration of the Constitution, the judicial decisions, the statutes, and the practice of
government officers.' It might take more than a government bureau or office to lay down or
establish a public policy, as alleged in your communication, but courts consider the practices
of government officials as one of the four factors in determining a public policy of the state. It
has been consistently held in America that under the principles relating to the doctrine of
public policy, as applied to the law of contracts, courts of justice will not recognize or uphold
a transaction which its object, operation, or tendency is calculated to be prejudicial to the
public welfare, to sound morality or to civic honesty (Ritter vs. Mutual Life Ins. Co., 169 U.S.
139; Heding vs. Gallaghere 64 L.R.A. 811; Veazy vs. Allen, 173 N.Y. 359). If Arellano
University understood clearly the real essence of scholarships and the motives which
prompted this office to issue Memorandum No. 38, s. 1949, it should have not entered into a
contract of waiver with Cui on September 10, 1951, which is a direct violation of our
Memorandum and an open challenge to the authority of the Director of Private Schools
because the contract was repugnant to sound morality and civic honesty. And finally, in
Gabriel vs. Monte de Piedad, Off. Gazette Supp. Dec. 6, 1941, p. 67 we read: 'In order to
 declare a contract void as against public policy, a court must find that the contract as to
consideration or the thing to be done, contravenes some established interest of society, or
is inconsistent with sound policy and good morals or tends clearly to undermine the security
of individual rights. The policy enunciated in Memorandum No. 38, s. 1949 is sound
policy. Scholarship are awarded in recognition of merit not to keep outstanding students in
school to bolster its prestige. In the understanding of that university scholarships award is a
business scheme designed to increase the business potential of an education institution.
Thus conceived it is not only inconsistent with sound policy but also good morals. But what is
morals? Manresa has this definition. It is good customs; those generally accepted principles
of morality which have received some kind of social and practical confirmation. The practice
of awarding scholarships to attract students and keep them in school is not good customs
nor has it received some kind of social and practical confirmation except in some private
institutions as in Arellano University. The University of the Philippines which implements
Section 5 of Article XIV of the Constitution with reference to the giving of free scholarships to
gifted children, does not require scholars to reimburse the corresponding value of the
scholarships if they transfer to other schools. So also with the leading colleges and
universities of the United States after which our educational practices or policies are
patterned. In these institutions scholarships are granted not to attract and to keep brilliant
students in school for their propaganda mine but to reward merit or help gifted students in
whom society has an established interest or a first lien. (Emphasis supplied.)

WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered
sentencing the defendant to pay to the plaintiff the sum of P1,033.87, with interest thereon at the
legal rate from September 1, 1954, date of the institution of this case, as well as the costs, and
dismissing defendant's counterclaim. It is so ordered.

Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Barrera, Parades, Dizon, De Leon and Natividad,
JJ., concur.
Bautista Angelo, J., reserves his vote.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 103982 December 11, 1992

ANTONIO A. MECANO, petitioner,

vs.
COMMISSION ON AUDIT, respondent.

CAMPOS, JR., J.:

Antonio A. Mecano, through a petition for certiorari, seeks to nullify the decision of the Commission
on Audit (COA, for brevity) embodied in its 7th Indorsement, dated January 16, 1992, denying his
claim for reimbursement under Section 699 of the Revised Administrative Code (RAC), as amended,
in the total amount of P40,831.00.
Petitioner is a Director II of the National Bureau of Investigation (NBI). He was hospitalized for
cholecystitis from March 26, 1990 to April 7, 1990, on account of which he incurred medical and
hospitalization expenses, the total amount of which he is claiming from the COA.

On May 11, 1990, in a memorandum to the NBI Director, Alfredo S. Lim (Director Lim, for brevity), he
requested reimbursement for his expenses on the ground that he is entitled to the benefits under
Section 699 1 of the RAC, the pertinent provisions of which read:

Sec. 699. Allowances in case of injury, death, or sickness incurred in performance of

duty. When a person in the service of the national government of a province, city,
municipality or municipal district is so injured in the performance of duty as thereby to
receive some actual physical hurt or wound, the proper Head of Department may
direct that absence during any period of disability thereby occasioned shall be on full
pay, though not more than six months, and in such case he may in his discretion also
authorize the payment of the medical attendance, necessary transportation,
subsistence and hospital fees of the injured person. Absence in the case
contemplated shall be charged first against vacation leave, if any there be.

xxx xxx xxx

In case of sickness caused by or connected directly with the performance of some

act in the line of duty, the Department head may in his discretion authorize the
payment of the necessary hospital fees.

Director Lim then forwarded petitioner's claim, in a 1st Indorsement dated June 22, 1990, to the
Secretary of Justice, along with the comment, bearing the same date, of Gerarda Galang, Chief,
LED of the NBI, "recommending favorable action thereof". Finding petitioner's illness to be service-
connected, the Committee on Physical Examination of the Department of Justice favorably
recommended the payment of petitioner's claim.

However, then Undersecretary of Justice Silvestre H. Bello III, in a 4th Indorsement dated November
21, 1990, returned petitioner's claim to Director Lim, having considered the statements of the
Chairman of the COA in its 5th Indorsement dated 19 September 1990, to the effect that the RAC
being relied upon was repealed by the Administrative Code of 1987.

Petitioner then re-submitted his claim to Director Lim, with a copy of Opinion No. 73, S. 1991 2 dated
April 26, 1991 of then Secretary of Justice Franklin M. Drilon (Secretary Drilon, for brevity) stating that
"the issuance of the Administrative Code did not operate to repeal or abregate in its entirety the Revised
Administrative Code, including the particular Section 699 of the latter".

On May 10, 1991, Director Lim, under a 5th Indorsement transmitted anew Mecano's claim to then
Undersecretary Bello for favorable consideration. Under a 6th Indorsement, dated July 2, 1991,
Secretary Drilon forwarded petitioner's claim to the COA Chairman, recommending payment of the
same. COA Chairman Eufemio C. Domingo, in his 7th Indorsement of January 16, 1992, however,
denied petitioner's claim on the ground that Section 699 of the RAC had been repealed by the
Administrative Code of 1987, solely for the reason that the same section was not restated nor re-
enacted in the Administrative Code of 1987. He commented, however, that the claim may be filed
with the Employees' Compensation Commission, considering that the illness of Director Mecano
occurred after the effectivity of the Administrative Code of 1987.
Eventually, petitioner's claim was returned by Undersecretary of Justice Eduardo Montenegro to
Director Lim under a 9th Indorsement dated February 7, 1992, with the advice that petitioner
"elevate the matter to the Supreme Court if he so desires".

On the sole issue of whether or not the Administrative Code of 1987 repealed or abrogated Section
699 of the RAC, this petition was brought for the consideration of this Court.

Petitioner anchors his claim on Section 699 of the RAC, as amended, and on the aforementioned
Opinion No. 73, S. 1991 of Secretary Drilon. He further maintains that in the event that a claim is
filed with the Employees' Compensation Commission, as suggested by respondent, he would still not
be barred from filing a claim under the subject section. Thus, the resolution of whether or not there
was a repeal of the Revised Administrative Code of 1917 would decide the fate of petitioner's claim
for reimbursement.

The COA, on the other hand, strongly maintains that the enactment of the Administrative Code of
1987 (Exec. Order No. 292) operated to revoke or supplant in its entirety the Revised Administrative
Code of 1917. The COA claims that from the "whereas" clauses of the new Administrative Code, it
can be gleaned that it was the intent of the legislature to repeal the old Code. Moreover, the COA
questions the applicability of the aforesaid opinion of the Secretary of Justice in deciding the matter.
Lastly, the COA contends that employment-related sickness, injury or death is adequately covered
by the Employees' Compensation Program under P.D. 626, such that to allow simultaneous recovery
of benefits under both laws on account of the same contingency would be unfair and unjust to the
Government.

The question of whether a particular law has been repealed or not by a subsequent law is a matter
of legislative intent. The lawmakers may expressly repeal a law by incorporating therein a repealing
provision which expressly and specifically cites the particular law or laws, and portions thereof, that
are intended to be repealed. 3 A declaration in a statute, usually in its repealing clause, that a particular
and specific law, identified by its number or title, is repealed is an express repeal; all others are implied
repeals. 4

In the case of the two Administrative Codes in question, the ascertainment of whether or not it was
the intent of the legislature to supplant the old Code with the new Code partly depends on the
scrutiny of the repealing clause of the new Code. This provision is found in Section 27, Book VII
(Final Provisions) of the Administrative Code of 1987 which reads:

Sec. 27. Repealing Clause. All laws, decrees, orders, rules and regulations, or
portions thereof, inconsistent with this Code are hereby repealed or modified
accordingly.

The question that should be asked is: What is the nature of this repealing clause? It is certainly not
an express repealing clause because it fails to identify or designate the act or acts that are intended
to be repealed. 5 Rather, it is an example of a general repealing provision, as stated in Opinion No. 73, S.
1991. It is a clause which predicates the intended repeal under the condition that substantial conflict must
be found in existing and prior acts. The failure to add a specific repealing clause indicates that the intent
was not to repeal any existing law, unless an irreconcilable inconcistency and repugnancy exist in the
terms of the new and old laws. 6 This latter situation falls under the category of an implied repeal.

Repeal by implication proceeds on the premise that where a statute of later date clearly reveals an
intention on the part of the legislature to abrogate a prior act on the subject, that intention must be
given effect. 7 Hence, before there can be a repeal, there must be a clear showing on the part of the
lawmaker that the intent in enacting the new law was to abrogate the old one. The intention to repeal
must be clear and manifest; 8 otherwise, at least, as a general rule, the later act is to be construed as a
continuation of, and not a substitute for, the first act and will continue so far as the two acts are the same
from the time of the first enactment. 9

There are two categories of repeal by implication. The first is where provisions in the two acts on the
same subject matter are in an irreconcilable conflict, the later act to the extent of the conflict
constitutes an implied repeal of the earlier one. The second is if the later act covers the whole
subject of the earlier one and is clearly intended as a substitute, it will operate to repeal the earlier
law. 10

Implied repeal by irreconcilable inconsistency takes place when the two statutes cover the same
subject matter; they are so clearly inconsistent and incompatible with each other that they cannot be
reconciled or harmonized; and both cannot be given effect, that is, that one law cannot be enforced
without nullifying the other. 11

Comparing the two Codes, it is apparent that the new Code does not cover nor attempt to cover the
entire subject matter of the old Code. There are several matters treated in the old Code which are
not found in the new Code, such as the provisions on notaries public, the leave law, the public
bonding law, military reservations, claims for sickness benefits under Section 699, and still others.

Moreover, the COA failed to demonstrate that the provisions of the two Codes on the matter of the
subject claim are in an irreconcilable conflict. In fact, there can be no such conflict because the
provision on sickness benefits of the nature being claimed by petitioner has not been restated in the
Administrative Code of 1987. However, the COA would have Us consider that the fact that Section
699 was not restated in the Administrative Code of 1987 meant that the same section had been
repealed. It further maintained that to allow the particular provisions not restated in the new Code to
continue in force argues against the Code itself. The COA anchored this argument on the whereas
clause of the 1987 Code, which states:

WHEREAS, the effectiveness of the Government will be enhanced by a new

Administrative Code which incorporate in a unified document the major structural,
functional and procedural principles and rules of governance; and

xxx xxx xxx

It argues, in effect, that what is contemplated is only one Code the Administrative Code of 1987.
This contention is untenable.

The fact that a later enactment may relate to the same subject matter as that of an earlier statute is
not of itself sufficient to cause an implied repeal of the prior act, since the new statute may merely be
cumulative or a continuation of the old one. 12 What is necessary is a manifest indication of legislative
purpose to repeal. 13

We come now to the second category of repeal the enactment of a statute revising or codifying
the former laws on the whole subject matter. This is only possible if the revised statute or code was
intended to cover the whole subject to be a complete and perfect system in itself. It is the rule that a
subsequent statute is deemed to repeal a prior law if the former revises the whole subject matter of
the former statute. 14 When both intent and scope clearly evidence the idea of a repeal, then all parts and
provisions of the prior act that are omitted from the revised act are deemed repealed. 15 Furthermore,
before there can be an implied repeal under this category, it must be the clear intent of the legislature that
the later act be the substitute to the prior act. 16
According to Opinion No. 73, S. 1991 of the Secretary of Justice, what appears clear is the intent to
cover only those aspects of government that pertain to administration, organization and procedure,
understandably because of the many changes that transpired in the government structure since the
enactment of the RAC decades of years ago. The COA challenges the weight that this opinion
carries in the determination of this controversy inasmuch as the body which had been entrusted with
the implementation of this particular provision has already rendered its decision. The COA relied on
the rule in administrative law enunciated in the case of Sison vs.Pangramuyen 17 that in the absence
of palpable error or grave abuse of discretion, the Court would be loathe to substitute its own judgment for
that of the administrative agency entrusted with the enforcement and implementation of the law. This will
not hold water. This principle is subject to limitations. Administrative decisions may be reviewed by the
courts upon a showing that the decision is vitiated by fraud, imposition or mistake. 18 It has been held that
Opinions of the Secretary and Undersecretary of Justice are material in the construction of statutes in pari
materia. 19

Lastly, it is a well-settled rule of statutory construction that repeals of statutes by implication are not
favored. 20The presumption is against inconsistency and repugnancy for the legislature is presumed to
know the existing laws on the subject and not to have enacted inconsistent or conflicting statutes. 21

This Court, in a case, explains the principle in detail as follows: "Repeals by implication are not
favored, and will not be decreed unless it is manifest that the legislature so intended. As laws are
presumed to be passed with deliberation with full knowledge of all existing ones on the subject, it is
but reasonable to conclude that in passing a statute it was not intended to interfere with or abrogate
any former law relating to some matter, unless the repugnancy between the two is not only
irreconcilable, but also clear and convincing, and flowing necessarily from the language used, unless
the later act fully embraces the subject matter of the earlier, or unless the reason for the earlier act is
beyond peradventure renewed. Hence, every effort must be used to make all acts stand and if, by
any reasonable construction, they can be reconciled, the later act will not operate as a repeal of the
earlier. 22

Regarding respondent's contention that recovery under this subject section shall bar the recovery of
benefits under the Employees' Compensation Program, the same cannot be upheld. The second
sentence of Article 173, Chapter II, Title II (dealing on Employees' Compensation and State
Insurance Fund), Book IV of the Labor Code, as amended by P.D. 1921, expressly provides that "the
payment of compensation under this Title shall not bar the recovery of benefits as provided for in
Section 699 of the Revised Administrative Code . . . whose benefits are administered by the system
(meaning SSS or GSIS) or by other agencies of the government."

WHEREFORE, premises considered, the Court resolves to GRANT the petition; respondent is
hereby ordered to give due course to petitioner's claim for benefits. No costs.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Nocon,
Bellosillo and Melo, JJ., concur.

Gutierrez, Jr., J., concur in the result.

Article 8 (Full Text Cases)

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-39990 July 22, 1975

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RAFAEL LICERA, defendant-appellant.

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and
Solicitor Pedro A. Ramirez for plaintiff-appellee.

Romeo Mercado (as Counsel de Oficio) for defendant-appellant.

CASTRO, J.:

This is an appeal, on a question of law, by Rafael Licera from the judgment dated August 14, 1968 of
the Court of First Instance of Occidental Mindoro convicting him of the crime of illegal possession of
firearm and sentencing him to imprisonment of five (5) years. We reverse the judgment of conviction,
for the reasons hereunder stated.

On December 3, 1965 the Chief of Police of Abra de Ilog, Occidental Mindoro, filed a complaint,
subscribed and sworn to by him, with the municipal court of the said municipality, charging Rafael
Licera with illegal possession of a Winchester rifle, Model 55, Caliber .30. On August 13, 1966 the
municipal court rendered judgment finding Licera guilty of the crime charged, sentencing him to
suffer an indeterminate penalty ranging five years and one day to six years and eight months of
imprisonment. Licera appealed to the Court of First Instance of Occidental Mindoro.

In the Court of First Instance, the parties agreed to the joint trial of the case for illegal possession of
firearm and another case, likewise filed against Licera with the municipal court but already forwarded
to the said Court of First Instance, for assault upon an agent of a person in authority, the two
offenses having arisen from the same occasion: apprehension of Licera by the Chief of Police and a
patrolman of Abra de Ilog on December 2, 1965 for possession of the Winchester rifle without the
requisite license or permit therefor.

On August 14, 1968 the court a quo rendered judgment acquitting Licera of the charge of assault
upon an agent of a person in authority, but convicting him of illegal possession of firearm, sentencing
him to suffer five years of imprisonment, and ordering the forfeiture of the Winchester rifle in favor of
the Government.

Licera's appeal to the Court of Appeals was certified on October 16, 1974 to this Court as involving
only one question of law.
Licera invokes as his legal justification for his possession of the Winschester rifle his appointment as
secret agent on December 11, 1961 by Governor Feliciano Leviste of Batangas. He claims that as
secret agent, he was a "peace officer" and, thus, pursuant to People vs. Macarandang, 1 was exempt
from the requirements relating to the issuance of license to possess firearms. He alleges that the court a
quo erred in relying on the later case of People vs. Mapa2 which held that section 879 of the Revised
Administrative Code provides no exemption for persons appointed as secret agents by provincial
governors from the requirements relating to firearm licenses.

The principal question thus posed calls for a determination of the rule that should be applied to the
case at bar that enunciated in Macarandang or that in Mapa.

The appointment given to Licera by Governor Leviste which bears the date "December 11, 1961"
includes a grant of authority to Licera to possess the Winchester rifle in these terms: "In accordance
with the decision of the Supreme Court in G.R. No. L-12088 dated December 23, 1959, you will have
the right to bear a firearm ... for use in connection with the performance of your duties." Under the
rule then prevailing, enunciated in Macarandang, 3the appointment of a civilian as a "secret agent to
assist in the maintenance of peace and order campaigns and detection of crimes sufficiently put[s] him
within the category of a "peace officer" equivalent even to a member of the municipal police" whom
section 879 of the Revised Administrative Code exempts from the requirements relating to firearm
licenses.

Article 8 of the Civil Code of the Philippines decrees that judicial decisions applying or interpreting
the laws or the Constitution form part of this jurisdiction's legal system. These decisions, although in
themselves not laws, constitute evidence of what the laws mean. The application or interpretation
placed by the Court upon a law is part of the law as of the date of the enactment of the said law
since the Court's application or interpretation merely establishes the contemporaneous legislative
intent that the construed law purports to carry into effect. 4

At the time of Licera's designation as secret agent in 1961 and at the time of his apprehension for
possession of the Winchester rifle without the requisite license or permit therefor in 1965,
the Macarandang rule the Courts interpretation of section 879 of the Revised Administrative Code
- formed part of our jurisprudence and, hence, of this jurisdiction's legal system. Mapa revoked
the Macarandang precedent only in 1967. Certainly, where a new doctrine abrogates an old rule, the
new doctrine should operate respectively only and should not adversely affect those favored by the
old rule, especially those who relied thereon and acted on the faith thereof. This holds more
especially true in the application or interpretation of statutes in the field of penal law, for, in this area,
more than in any other, it is imperative that the punishability of an act be reasonably foreseen for the
guidance of society. 5

Pursuant to the Macarandang rule obtaining not only at the time of Licera's appointment as secret
agent, which appointment included a grant of authority to possess the Winchester rifle, but as well at
the time as of his apprehension, Licera incurred no criminal liability for possession of the said rifle,
notwithstanding his non-compliance with the legal requirements relating to firearm licenses. 1wph1.t

ACCORDINGLY, the judgment a quo is reversed, and Rafael Licera is hereby acquitted. Costs de
oficio.

Makasiar, Esguerra, Muoz Palma and Martin, JJ., concur.

Teehankee, J., is on leave.

 Article 9 (Full Text Cases)
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-10010 August 1, 1916

CHU JAN, plaintiff-appellee,

vs.
LUCIO BERNAS, defendant-appellant.

Sulpicio V. Cea for appellant.

ARAULLO, J.:

On the afternoon of June 26, 1913, a match was held in the cockpit of the municipality of Tabaco,
Albay, between two cocks belonging to the plaintiff and to the defendant respectively. Each of said
persons had put up a wager of P160; and as the referee of the cockpit had declared the defendant's
cock the winner in the bout, the plaintiff brought suit against the defendant in the justice of the peace
court of the said pueblo, asking that his own rooster be declared the winner. The justice of the peace
court decided that the bout was a draw. From this judgment the defendant appealed to the Court of
First Instance of the province. For the purposes of the appeal, the plaintiff filed his complaint and
prayed this court to render judgment ordering the defendant to abide by and comply with the rules
and regulations governing cockfights, to pay the stipulated wager of P160; to return the other like
amount (both sums of wager being held for safe-keeping by the cockpit owner, Tomas Almonte) and
to assess the costs of both instances against the defendant.

The defendant denied each and all of the allegations of the complaint and moved to dismiss with the
costs against the plaintiff. On September 11, 1913, the said Court of First Instance rendered
judgment dismissing the appeal without special finding as to costs. The defendant excepted to this
judgment as well as to an order dictated by the same court on November 8th of the same year, on
the plaintiff's motion, ordering the provincial treasurer of Albay and, if necessary, the municipal
treasurer of Tabaco of the same province, to release the deposit of P160 and return it to its owner,
the plaintiff Chinaman, Chu Jan. These proceedings have come before us on appeal by means of
the proper bill of exceptions.

The grounds for the dismissal pronounced by the lower court in the judgment appealed from ere that
the court has always dismissed cases of this nature, that he is not familiar with the rules governing
cockfights and the duties of referees thereof; that he does not know where to find the law on the
subject and, finally, that he knows of no law whatever that governs the rights to the plaintiff and the
defendant in questions concerning cockfights.

The ignorance of the court or his lack of knowledge regarding the law applicable to a case submitted
to him for decision, the fact that the court does not know the rules applicable to a certain matter that
is the subject of an appeal which must be decided by him and his not knowing where to find the law
relative to the case, are not reasons that can serve to excuse the court for terminating the
proceedings by dismissing them without deciding the issues. Such an excuse is the less acceptable
because, foreseeing that a case might arise to which no law would be exactly applicable, the Civil
Code, in the second paragraph of article 6, provides that the customs of the place shall be observed,
and, in the absence thereof, the general principles of law.

Therefore the judgment and the order appealed from, hereinbefore mentioned, are reversed and to
record of the proceedings shall remanded to the court from whence they came for due trial and
judgment as provided by law. No special finding is made with regard to costs. So ordered.

Arellano, C. J., Torres, Johnson, and Trent, JJ., concur.

Moreland, J., took no part.

Article 10 (Full Text Cases)

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-42050-66 November 20, 1978

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HONORABLE JUDGE AMANTE P. PURISIMA, COURT OF FIRST INSTANCE OF MANILA,
BRANCH VII, and PORFIRIO CANDELOSAS, NESTOR BAES, ELIAS L. GARCIA, SIMEON
BUNDALIAN, JR., JOSEPH C. MAISO, EDUARDO A. LIBORDO, ROMEO L. SUGAY, FEDERICO
T. DIZON, GEORGE M. ALBINO, MARIANO COTIA, JR., ARMANDO L. DIZON, ROGELIO B.
PARENO, RODRIGO V. ESTRADA, ALFREDO A. REYES, JOSE A. BACARRA, REYNALDO
BOGTONG, and EDGARDO M. MENDOZA, respondents.

G.R. No. L-46229-32 November 20, 1978

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA, BRANCH XVIII, and
REYNALDO LAQUI Y AQUINO, ELPIDIO ARPON, VICTOR EUGENIO Y ROQUE and ALFREDO
VERSOZA, respondents.

G.R. No. L-46313-16 November 20, 1978

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA, BRANCH XVIII, and
JUANITO DE LA CRUZ Y NUNEZ, SABINO BUENO Y CACAL, TIRSO ISAGAN Y FRANCISCO
and BEN CASTILLO Y UBALDO, respondents.

G.R. No. L-46997 November 20, 1978

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
THE HONORABLE WENCESLAO M. POLO, Judge of the Court of First Instance of Samar, and
PANCHITO REFUNCION, respondents.

Jose L. Gamboa, Fermin Martin, Jr. & Jose D. Cajucom, Office of the City of Fiscal of Manila and the
Office of Provincial Fiscal of Samar for petitioners.

Norberto Parto for respondents Candelosas, Baes and Garcia.

Amado C. de la Marced for respondents Simeon Bundalian Jr., et al.

Manuel F. de Jesus for all the respondents in L-46229-32 and L-46313-16.

Norberto L. Apostol for respondent Panchito Refuncion.

Hon. Amante P. Purisima for and in his own behalf.

MUOZ PALMA, J.:

These twenty-six (26) Petitions for Review filed by the People of the Philippines represented,
respectively, by the Office of the City Fiscal of Manila, the Office of the Provincial Fiscal of Samar,
and joined by the Solicitor General, are consolidated in this one Decision as they involve one basic
question of law.

These Petitions or appeals involve three Courts of First Instance, namely: the Court of First Instance
of Manila, Branch VII, presided by Hon. Amante P. Purisima (17 Petitions), the Court of First Instance
of Manila, Branch XVIII, presided by Hon. Maximo A. Maceren (8 Petitions) and, the Court of First
Instance of Samar, with Hon. Wenceslao M. Polo, presiding, (1 Petition).

Before those courts, Informations were filed charging the respective accused with "illegal possession
of deadly weapon" in violation of Presidential Decree No. 9. On a motion to quash filed by the
accused, the three Judges mentioned above issued in the respective cases filed before them the
details of which will be recounted below an Order quashing or dismissing the Informations, on
a common ground, viz, that the Information did not allege facts which constitute the offense
penalized by Presidential Decree No. 9 because it failed to state one essential element of the crime.

Thus, are the Informations filed by the People sufficient in form and substance to constitute the
offense of "illegal possession of deadly weapon" penalized under Presidential Decree (PD for short)
No. 9? This is the central issue which we shall resolve and dispose of, all other corollary matters not
being indispensable for the moment.

A The Information filed by the People

1. In L-42050-66, one typical Information filed with the Court presided by Judge Purisima follows:

THE PEOPLE OF THE PHILIPPINES, plaintiff, versus PORFIRIO CANDELOSAS Y

DURAN, accused.

Crim. Case No. 19639

 VIOLATION OF PAR. 3, PRES. DECREE No. 9 OF PROCLAMATION 1081

INFORMATION

The undersigned accuses PORFIRIO CANDELOSAS Y DURAN of a violation of

paragraph 3, Presidential Decree No. 9 of Proclamation 1081, committed as follows:

That on or about the 14 th day of December, 1974, in the City of Manila, Philippines,
the said accused did then and there wilfully, unlawfully, feloniously and knowingly
have in his possession and under his custody and control one (1) carving knife with a
blade of 6- inches and a wooden handle of 5-1/4 inches, or an overall length of 11-
inches, which the said accused carried outside of his residence, the said weapon
not being used as a tool or implement necessary to earn his livelihood nor being
used in connection therewith.

Contrary to law. (p. 32, rollo of L-42050-66)

The other Informations are similarly worded except for the name of the accused, the date and place
of the commission of the crime, and the kind of weapon involved.

2. In L-46229-32 and L-46313-16, the Information filed with the Court presided by Judge Maceren
follows:

THE PEOPLE OF THE PHILIPPINES, plaintiff, versus REYNALDO LAQUI Y

AQUINO, accused.

CRIM. CASE NO. 29677

VIOL. OF PAR. 3,

PD 9 IN REL. TO LOI

No. 266 of the Chief

Executive dated April 1, 1975

INFORMATION

The undersigned accuses REYNALDO LAQUI Y AQUINO of a VIOLATION OF

PARAGRAPH 3, PRESIDENTIAL DECREE NO. 9 in relation to Letter of Instruction
No. 266 of the Chief Executive dated April 1, 1975, committed as follows:

That on or about the 28 th day of January, 1977, in the City of Manila, Philippines,
the said accused did then and there wilfully, unlawfully and knowingly carry outside of
his residence a bladed and pointed weapon, to wit: an ice pick with an overall length
of about 8 inches, the same not being used as a necessary tool or implement to
earn his livelihood nor being used in connection therewith.

Contrary to law. (p. 14, rollo of L-46229-32)

The other Informations are likewise similarly worded except for the name of the accused, the date
and place of the commission of the crime, and the kind of weapon involved.

3. In L-46997, the Information before the Court of First Instance of Samar is quoted hereunder:

PEOPLE OF THE PHILIPPINES, complainant, versus PANCHITO REFUNCION,

accused.

CRIM. CASE NO. 933

For:

ILLEGAL POSSESSION OF

DEADLY WEAPON

(VIOLATION OF PD NO. 9)

INFORMATION

The undersigned First Assistant Provincial Fiscal of Samar, accuses PANCHITO

REFUNCION of the crime of ILLEGAL POSSESSION OF DEADLY WEAPON or
VIOLATION OF PD NO. 9 issued by the President of the Philippines on Oct. 2, 1972,
pursuant to Proclamation No. 1081 dated Sept. 21 and 23, 1972, committed as
follows:

That on or about the 6th day of October, 1976, in the evening at Barangay Barruz,
Municipality of Matuginao, Province of Samar Philippines, and within the jurisdiction
of this Honorabe Court, the abovenamed accused, knowingly, wilfully, unlawfully and
feloniously carried with him outside of his residence a deadly weapon called
socyatan, an instrument which from its very nature is no such as could be used as a
necessary tool or instrument to earn a livelihood, which act committed by the
accused is a Violation of Presidential Decree No. 9.

CONTRARY TO LAW. (p. 8, rollo of L-46997)

B. The Orders of dismissal

In dismissing or quashing the Informations the trial courts concurred with the submittal of the
defense that one essential element of the offense charged is missing from the Information, viz: that
the carrying outside of the accused's residence of a bladed, pointed or blunt weapon is in
furtherance or on the occasion of, connected with or related to subversion, insurrection, or rebellion,
organized lawlessness or public disorder.

1. Judge Purisima reasoned out, inter alia, in this manner:

... the Court is of the opinion that in order that possession of bladed weapon or the
like outside residence may be prosecuted and tried under P.D. No. 9, the information
must specifically allege that the possession of bladed weapon charged was for the
purpose of abetting, or in furtherance of the conditions of rampant criminality,
organized lawlessness, public disorder, etc. as are contemplated and recited in
 Proclamation No. 1081, as justification therefor. Devoid of this specific allegation, not
necessarily in the same words, the information is not complete, as it does not allege
sufficient facts to constitute the offense contemplated in P.D. No. 9. The information
in these cases under consideration suffer from this defect.

xxx xxx xxx

And while there is no proof of it before the Court, it is not difficult to believe the
murmurings of detained persons brought to Court upon a charge of possession of
bladed weapons under P.D. No. 9, that more than ever before, policemen - of course
not all can be so heartless now have in their hands P.D. No. 9 as a most
convenient tool for extortion, what with the terrifying risk of being sentenced to
imprisonment of five to ten years for a rusted kitchen knife or a pair of scissors,
which only God knows where it came from. Whereas before martial law an extortion-
minded peace officer had to have a stock of the cheapest paltik, and even that could
only convey the coercive message of one year in jail, now anything that has the
semblance of a sharp edge or pointed object, available even in trash cans, may
already serve the same purpose, and yet five to ten times more incriminating than
the infamous paltik.

For sure, P.D. No. 9 was conceived with the best of intentions and wisely applied, its
necessity can never be assailed. But it seems it is back-firing, because it is too hot in
the hands of policemen who are inclined to backsliding.

The checkvalves against abuse of P.D. No. 9 are to be found in the heart of the
Fiscal and the conscience of the Court, and hence this resolution, let alone technical
legal basis, is prompted by the desire of this Court to apply said checkvalves. (pp.
55-57, rollo of L-42050-66)

2. Judge Maceren in turn gave his grounds for dismissing the charges as follows:

xxx xxx xxx

As earlier noted the "desired result" sought to be attained by Proclamation No. 1081
is the maintenance of law and order throughout the Philippines and the prevention
and suppression of all forms of lawless violence as well as any act of insurrection or
rebellion. It is therefore reasonable to conclude from the foregoing premises that the
carrying of bladed, pointed or blunt weapons outside of one's residence which is
made unlawful and punishable by said par. 3 of P.D. No. 9 is one
thatabets subversion, insurrection or rebellion, lawless violence, criminality, chaos
and public disorder or is intended to bring about these conditions. This conclusion is
further strengthened by the fact that all previously existing laws that also made the
carrying of similar weapons punishable have not been repealed, whether expressly
or impliedly. It is noteworthy that Presidential Decree No. 9 does not contain any
repealing clause or provisions.

xxx xxx xxx

The mere carrying outside of one's residence of these deadly weapons if not
concealed in one's person and if not carried in any of the aforesaid specified places,
would appear to be not unlawful and punishable by law.
 With the promulgation of Presidential Decree No. 9, however, the prosecution,
through Assistant Fiscal Hilario H. Laqui, contends in his opposition to the motion to
quash, that this act is now made unlawful and punishable, particularly by paragraph
3 thereof, regardless of the intention of the person carrying such weapon because
the law makes it "mala prohibita". If the contention of the prosecution is correct, then
if a person happens to be caught while on his way home by law enforcement officers
carrying a kitchen knife that said person had just bought from a store in order that
the same may be used by one's cook for preparing the meals in one's home, such
person will be liable for punishment with such a severe penalty as imprisonment from
five to ten years under the decree. Such person cannot claim that said knife is going
to be used by him to earn a livelihood because he intended it merely for use by his
cook in preparing his meals.

This possibility cannot be discounted if Presidential Decree No. 9 were to be

interpreted and applied in the manner that that the prosecution wants it to be done.
The good intentions of the President in promulgating this decree may thus be
perverted by some unscrupulous law enforcement officers. It may be used as a tool
of oppression and tyranny or of extortion.

xxx xxx xxx

It is therefore the considered and humble view of this Court that the act which the
President intended to make unlawful and punishable by Presidential Decree No. 9,
particularly by paragraph 3 thereof, is one that abets or is intended to abet
subversion, rebellion, insurrection, lawless violence, criminality, chaos and public
disorder. (pp. 28-30, rollo of L-46229-32)

3. Judge Polo of the Court of First Instance of Samar expounded his order dismissing the
Information filed before him, thus:

... We believe that to constitute an offense under the aforcited Presidential decree,
the same should be or there should be an allegation that a felony was committed in
connection or in furtherance of subversion, rebellion, insurrection, lawless violence
and public disorder. Precisely Proclamation No. 1081 declaring a state of martial law
throughout the country was issued because of wanton destruction to lives and
properties widespread lawlessness and anarchy. And in order to restore the
tranquility and stability of the country and to secure the people from violence anti
loss of lives in the quickest possible manner and time, carrying firearms, explosives
and deadly weapons without a permit unless the same would fall under the exception
is prohibited. This conclusion becomes more compelling when we consider the
penalty imposable, which is from five years to ten years. A strict enforcement of the
provision of the said law would mean the imposition of the Draconian penalty upon
the accused.

xxx xxx xxx

It is public knowledge that in rural areas, even before and during martial law, as a
matter of status symbol, carrying deadly weapons is very common, not necessarily
for committing a crime nor as their farm implement but for self-preservation or self-
defense if necessity would arise specially in going to and from their farm. (pp. 18-19,
rollo of L-46997)
In most if not all of the cases, the orders of dismissal were given before arraignment of the accused.
In the criminal case before the Court of (First Instance of Samar the accused was arraigned but at
the same time moved to quash the Information. In all the cases where the accused were under
arrest, the three Judges ordered their immediate release unless held on other charges.

C. The law under which the Informations in question were filed by the People.

As seen from the Informations quoted above, the accused are charged with illegal possession of
deadly weapon in violation of Presidential Decree No. 9, Paragraph 3.

We quote in full Presidential Decree No. 9, to wit:

PRESIDENTIAL DECREE NO. 9

DECLARING VIOLATIONS OF GENERAL ORDERS NO. 6 and NO. 7 DATED

SEPTEMBER 22, 1972, AND SEPTEMBER 23, 1972, RESPECTIVELY, TO BE
UNLAWFUL AND PROVIDING PENALTIES THEREFORE.

WHEREAS, pursuant to Proclamation No. 1081 dated September 21, 1972, the
Philippines has been placed under a state of martial law;

WHEREAS, by virtue of said Proclamation No. 1081, General Order No. 6 dated
September 22, 1972 and General Order No. 7 dated September 23, 1972, have
been promulgated by me;

WHEREAS, subversion, rebellion, insurrection, lawless violence, criminality, chaos

and public disorder mentioned in the aforesaid Proclamation No. 1081 are committed
and abetted by the use of firearms, explosives and other deadly weapons;

NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the

Armed Forces of the Philippines, in older to attain the desired result of the aforesaid
Proclamation No. 1081 and General Orders Nos. 6 and 7, do hereby order and
decree that:

1. Any violation of the aforesaid General Orders Nos. 6 and 7 is unlawful and the
violator shall, upon conviction suffer:

(a) The mandatory penalty of death by a firing squad or electrocution as a Military,

Court/Tribunal/Commission may direct, it the firearm involved in the violation is
unlicensed and is attended by assault upon, or resistance to persons in authority or
their agents in the performance of their official functions resulting in death to said
persons in authority or their agent; or if such unlicensed firearm is used in the
commission of crimes against persons, property or chastity causing the death of the
victim used in violation of any other General Orders and/or Letters of Instructions
promulgated under said Proclamation No. 1081:

(b) The penalty of imprisonment ranging from twenty years to life imprisonment as a
Military Court/Tribunal/commission may direct, when the violation is not attended by
any of the circumstances enumerated under the preceding paragraph;
 (c) The penalty provided for in the preceding paragraphs shall be imposed upon the
owner, president, manager, members of the board of directors or other responsible
officers of any public or private firms, companies, corporations or entities who shall
willfully or knowingly allow any of the firearms owned by such firm, company,
corporation or entity concerned to be used in violation of said General Orders Nos. 6
and 7.

2. It is unlawful to posses deadly weapons, including hand grenades, rifle grenades

and other explosives, including, but not limited to, "pill box bombs," "molotov cocktail
bombs," "fire bombs," or other incendiary device consisting of any chemical,
chemical compound, or detonating agents containing combustible units or other
ingredients in such proportion, quantity, packing, or bottling that ignites by fire, by
friction, by concussion, by percussion, or by detonation of all or part of the compound
or mixture which may cause such a sudden generation of highly heated gases that
the resultant gaseous pressures are capable of producing destructive effects on
continguous objects or of causing injury or death of a person; and any person
convicted thereof shall be punished by imprisonment ranging from ten to fifteen
years as a Military Court/Tribunal/Commission may direct.

3. It is unlawful to carry outside of residence any bladed, pointed or blunt weapon

such as "fan knife," "spear," "dagger," "bolo," "balisong," "barong," "kris," or club,
except where such articles are being used as necessary tools or implements to earn
a livelihood and while being used in connection therewith; and any person found
guilty thereof shall suffer the penalty of imprisonment ranging from five to ten years
as a Military Court/Tribunal/Commission may direct.

4. When the violation penalized in the preceding paragraphs 2 and 3 is committed

during the commission of or for the purpose of committing, any other crime, the
penalty shall be imposed upon the offender in its maximum extent, in addition to the
penalty provided for the particular offenses committed or intended to be committed.

Done in the City of Manila, this 2nd day of October in the year of Our Lord, nineteen
hundred and seventy-two.

(SGD) FERDINAND E.
MARCOS

President

Republic of the Philippines

D. The arguments of the People

In the Comment filed in these cases by the Solicitor General who as stated earlier joins the City
Fiscal of Manila and the Provincial Fiscal of Samar in seeking the setting aside of the questioned
orders of dismissal, the main argument advanced on the issue now under consideration is that a
perusal of paragraph 3 of P.D. 9 'shows that the prohibited acts need not be related to subversive
activities; that the act proscribed is essentially a malum prohibitum penalized for reasons of public
policy. 1
The City Fiscal of Manila in his brief adds further that in statutory offenses the intention of the
accused who commits the act is immaterial; that it is enough if the prohibited act is voluntarily
perpetuated; that P.D. 9 provides and condemns not only the carrying of said weapon in connection
with the commission of the crime of subversion or the like, but also that of criminality in general, that
is, to eradicate lawless violence which characterized pre-martial law days. It is also argued that the
real nature of the criminal charge is determined not from the caption or preamble of the information
nor from the specification of the provision of law alleged to have been violated but by the actual
recital of facts in the complaint or information. 2

E. Our Ruling on the matter

1. It is a constitutional right of any person who stands charged in a criminal prosecution to be

informed of the nature and cause of the accusation against him. 3

Pursuant to the above, Section 5, Rule 110 of the Rules of Court, expressly requires that for a
complaint or information to be sufficient it must, inter alia state the designation of the offense by the
statute, and the acts or omissions complained of as constituting the offense. This is essential to
avoid surprise on the accused and to afford him the opportunity to prepare his defense accordingly. 4

To comply with these fundamental requirements of the Constitution and the Rules on Criminal
Procedure, it is imperative for the specific statute violated to be designated or mentioned 4 in the
charge. In fact, another compelling reason exists why a specification of the statute violated is
essential in these cases. As stated in the order of respondent Judge Maceren the carrying of so-
called "deadly weapons" is the subject of another penal statute and a Manila city ordinance. Thus,
Section 26 of Act No. 1780 provides:

Section 26. It should be unlawful for any person to carry concealed about his person
any bowie knife, dirk dagger, kris, or other deadly weapon: ... Any person violating
the provisions of this section shall, upon conviction in a court of competent
jurisdiction, be punished by a fine not exceeding five hundred pesos, or by
imprisonment for a period not exceeding six months, or both such fine and
imprisonment, in the discretion of the court.

Ordinance No. 3820 of the City of Manila as amended by Ordinance No. 3928 which took effect on
December 4, 1957, in turn penalizes with a fine of not more than P200.00 or imprisonment for not
more than one months, or both, at the discretion of the court, anyone who shall carry concealed in
his person in any manner that would disguise its deadly character any kind of firearm, bowie knife,
or other deadly weapon ... in any public place.Consequently, it is necessary that the particular law
violated be specified as there exists a substantial difference between the statute and city ordinance
on the one hand and P.D. 9 (3) on the other regarding the circumstances of the commission of the
crime and the penalty imposed for the offense.

We do not agree with petitioner that the above-mentioned statute and the city ordinance are deemed
repealed by P.D. 9 (3). 5 P. D. 9(3) does not contain any repealing clause or provision, and repeal by
implication is not favored. 6 This principle holds true with greater force with regards to penal statutes
which as a rule are to be construed strictly against the state and liberally in favor of the accused. 7 In fact,
Article 7 of the New Civil Code provides that laws are repealed only by subsequent ones and their
violation or non- observance shall not be excused by disuse, or custom or practice to the contrary.

Thus we are faced with the situation where a particular act may be made to fall, at the discretion of a
police officer or a prosecuting fiscal, under the statute, or the city ordinance, or the presidential
decree. That being the case, the right becomes more compelling for an accused to be confronted
with the facts constituting the essential elements of the offense charged against him, if he is not to
become an easy pawn of oppression and harassment, or of negligent or misguided official action
a fear understandably shared by respondent Judges who by the nature of their judicial functions are
daily exposed to such dangers.

2. In all the Informations filed by petitioner the accused are charged in the caption as well as in the
body of the Information with a violation of paragraph 3, P.D. 9. What then are the elements of the
offense treated in the presidential decree in question?

We hold that the offense carries two elements: first, the carrying outside one's residence of any
bladed, blunt, or pointed weapon, etc. not used as a necessary tool or implement for a livelihood;
and second, that the act of carrying the weapon was either in furtherance of, or to abet, or in
connection with subversion, rebellion, insurrection, lawless violence, criminality, chaos, or public
disorder.

It is the second element which removes the act of carrying a deadly weapon, if concealed, outside of
the scope of the statute or the city ordinance mentioned above. In other words, a simple act of
carrying any of the weapons described in the presidential decree is not a criminal offense in itself.
What makes the act criminal or punishable under the decree is the motivation behind it. Without that
motivation, the act falls within the purview of the city ordinance or some statute when the
circumstances so warrant.

Respondent Judges correctly ruled that this can be the only reasonably, logical, and valid
construction given to P.D. 9(3).

3. The position taken by petitioner that P.D. 9(3) covers one and all situations where a person carries
outside his residence any of the weapons mentioned or described in the decree irrespective of
motivation, intent, or purpose, converts these cases into one of "statutory construction." That there is
ambiguity in the presidential decree is manifest from the conflicting views which arise from its
implementation. When ambiguity exists, it becomes a judicial task to construe and interpret the true
meaning and scope of the measure, guided by the basic principle that penal statutes are to be
construed and applied liberally in favor of the accused and strictly against the state.

4. In the construction or interpretation of a legislative measure a presidential decree in these

cases the primary rule is to search for and determine the intent and spirit of the law. Legislative
intent is the controlling factor, for in the words of this Court in Hidalgo v. Hidalgo, per Mr. Justice
Claudio Teehankee, whatever is within the spirit of a statute is within the statute, and this has to be
so if strict adherence to the letter would result in absurdity, injustice and contradictions. 8

There are certain aids available to Us to ascertain the intent or reason for P.D. 9(3).

First, the presence of events which led to or precipitated the enactment of P.D. 9. These events are
clearly spelled out in the "Whereas" clauses of the presidential decree, thus: (1) the state of martial
law in the country pursuant to Proclamation 1081 dated September 21, 1972; (2) the desired result
of Proclamation 1081 as well as General Orders Nos. 6 and 7 which are particularly mentioned in
P.D. 9; and (3) the alleged fact that subversion, rebellion, insurrection, lawless violence, criminality,
chaos, aid public disorder mentioned in Proclamation 1081 are committed and abetted by the use of
firearms and explosives and other deadly weapons.

The Solicitor General however contends that a preamble of a statute usually introduced by the word
"whereas", is not an essential part of an act and cannot enlarge or confer powers, or cure inherent
defects in the statute (p. 120, rollo of L-42050-66); that the explanatory note or enacting clause of
the decree, if it indeed limits the violation of the decree, cannot prevail over the text itself inasmuch
as such explanatory note merely states or explains the reason which prompted the issuance of the
decree. (pp. 114-115, rollo of 46997)

We disagree with these contentions. Because of the problem of determining what acts fall within the
purview of P.D. 9, it becomes necessary to inquire into the intent and spirit of the decree and this
can be found among others in the preamble or, whereas" clauses which enumerate the facts or
events which justify the promulgation of the decree and the stiff sanctions stated therein.

A "preamble" is the key of the statute, to open the minds of the makers as to
the mischiefs which are to be remedied, and objects which are to be accomplished,
by the provisions of the statute." (West Norman Timber v. State, 224 P. 2d 635, 639,
cited in Words and Phrases, "Preamble"; emphasis supplied)

While the preamble of a statute is not strictly a part thereof, it may, when the statute
is in itself ambiguous and difficult of interpretation, be resorted to, but not to create a
doubt or uncertainty which otherwise does not exist." (James v. Du Bois, 16 N.J.L. (1
Har.) 285, 294, cited in Words and Phrases, "Preamble")

In Aboitiz Shipping Corporation, et al. v. The City of Cebu, et al. this Court had occasion to state that
'(L)egislative intent must be ascertained from a consideration of the statute as a whole, and not of an
isolated part or a particular provision alone. This is a cardinal rule of statutory construction. For
taken in the abstract, a word or phrase might easily convey a meaning quite different from the one
actually intended and evident when the word or phrase is considered with those with which it is
associated. Thus, an apparently general provision may have a limited application if read together
with other provisions. 9

Second, the result or effects of the presidential decree must be within its reason or intent.

In the paragraph immediately following the last "Whereas" clause, the presidential decree states:

NOW, THEREFORE, I , FERDINAND E. MARCOS, Commander-in-Chief of an the

Armed Forces of the Philippines, in order to attain the desired result of the aforesaid
Proclamation No. 1081 and General Orders Nos. 6 and 7, do hereby order and
decree that:

xxx xxx xxx

From the above it is clear that the acts penalized in P.D. 9 are those related to
the desired result of Proclamation 1081 and General Orders Nos. 6 and 7. General
Orders Nos. 6 and 7 refer to firearms and therefore have no relevance to P.D. 9(3)
which refers to blunt or bladed weapons. With respect to Proclamation 1081 some of
the underlying reasons for its issuance are quoted hereunder:

WHEREAS, these lawless elements having taken up arms against our duly
constituted government and against our people, and having committed and are still
committing acts of armed insurrection and rebellion consisting of armed raids, forays,
sorties, ambushes, wanton acts of murders, spoilage, plunder, looting, arsons,
destruction of public and private buildings, and attacks against innocent and
defenseless civilian lives and property, all of which activities have seriously
 endangered and continue to endanger public order and safety and the security of the
nation, ...

xxx xxx xxx

WHEREAS, it is evident that there is throughout the land a state of anarchy and
lawlessness, chaos and disorder, turmoil and destruction of a magnitude equivalent
to an actual war between the forces of our duly constituted government and the New
People's Army and their satellite organizations because of the unmitigated forays,
raids, ambuscades, assaults, violence, murders, assassinations, acts of terror,
deceits, coercions, threats, intimidations, treachery, machinations, arsons, plunders
and depredations committed and being committed by the aforesaid lawless elements
who have pledged to the whole nation that they will not stop their dastardly effort and
scheme until and unless they have fully attained their primary and ultimate purpose
of forcibly seizing political and state power in this country by overthrowing our
present duly constituted government, ... (See Book I, Vital Documents on the
Declaration of Martial Law in the Philippines by the Supreme Court of the
Philippines, pp. 13-39)

It follows that it is only that act of carrying a blunt or bladed weapon with a motivation connected with
or related to the afore-quoted desired result of Proclamation 1081 that is within the intent of P.D.
9(3), and nothing else.

Statutes are to be construed in the light of purposes to be achieved and the evils
sought to be remedied. (U.S. v. American Tracking Association, 310 U.S. 534, cited
in LVN Pictures v. Philippine Musicians Guild, 110 Phil. 725, 731; emphasis supplied)

When construing a statute, the reason for its enactment should be kept in mind, and
the statute should be construed with reference to its intended scope and purpose.
(Statutory Construction by E.T. Crawford, pp. 604-605, cited in Commissioner of
Internal Revenue v. Filipinas Compania de Seguros, 107 Phil. 1055, 1060; emphasis
supplied)

5. In the construction of P.D. 9(3) it becomes relevant to inquire into the consequences of the
measure if a strict adherence to the letter of the paragraph is followed.

It is a salutary principle in statutory construction that there exists a valid presumption that
undesirable consequences were never intended by a legislative measure, and that a construction of
which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous,
indefensible, wrongful, evil, and injurious consequences. 9-a

It is to be presumed that when P.D. 9 was promulgated by the President of the Republic there was
no intent to work a hardship or an oppressive result, a possible abuse of authority or act of
oppression, arming one person with a weapon to impose hardship on another, and so on. 10

At this instance We quote from the order of Judge Purisima the following:

And while there is no proof of it before the Court, it is not difficult to believe the
murmurings of detained persons brought to Court upon a charge of possession of
bladed weapons under P.D. No. 9, that more than ever before, policemen - of course
not all can be so heartless now have in their hands P.D. No. 9 as a most
 convenient tool for extortion, what with the terrifying risk of being sentenced to
imprisonment of five to ten years for a rusted kitchen knife or a pair of scissors,
which only God knows where it came from. Whereas before martial law an extortion-
minded peace officer had to have a stock of the cheapest paltik, and even that could
only convey the coercive message of one year in jail, now anything that has the
semblance of a sharp edge or pointed object, available even in trash cans, may
already serve the same purpose, and yet five to ten times more incriminating than
the infamous paltik. (pp. 72-73, rollo L-42050-66)

And as respondent Judge Maceren points out, the people's interpretation of P.D. 9(3) results in
absurdity at times. To his example We may add a situation where a law-abiding citizen, a lawyer by
profession, after gardening in his house remembers to return the bolo used by him to his neighbor
who lives about 30 meters or so away and while crossing the street meets a policeman. The latter
upon seeing the bolo being carried by that citizen places him under arrest and books him for a
violation of P.D. 9(3). Could the presidential decree have been conceived to produce such absurd,
unreasonable, and insensible results?

6. Penal statutes are to be construed strictly against the state and liberally in favor of an accused.

American jurisprudence sets down the reason for this rule to be "the tenderness of the law of the
rights of individuals; the object is to establish a certain rule by conformity to which mankind would be
safe, and the discretion of the court limited." 11 The purpose is not to enable a guilty person to escape
punishment through a technicality but to provide a precise definition of forbidden acts. 12

Our own decisions have set down the same guidelines in this manner, viz:

Criminal statutes are to be construed strictly. No person should be brought within

their terms who is not clearly within them, nor should any act be pronounced criminal
which is not made clearly so by the statute. (U.S. v. Abad Santos, 36 Phil. 243, 246)

The rule that penal statutes are given a strict construction is not the only factor
controlling the interpretation of such laws, instead, the rule merely serves as an
additional, single factor to be considered as an aid in determining the meaning of
penal laws. (People v. Manantan, 5 SCRA 684, 692)

F. The Informations filed by petitioner are fatally defective.

The two elements of the offense covered by P.D. 9(3) must be alleged in the Information in order
that the latter may constitute a sufficiently valid charged. The sufficiency of an Information is
determined solely by the facts alleged therein. 13 Where the facts are incomplete and do not convey the
elements of the crime, the quashing of the accusation is in order.

Section 2(a), Rule 117 of the Rules of Court provides that the defendant may move to quash the
complaint or information when the facts charged do not constitute an offense.

In U.S.U. Gacutan, 1914, it was held that where an accused is charged with knowingly rendering an
unjust judgment under Article 204 of the Revised Penal Code, failure to allege in the Information that
the judgment was rendered knowing it to be unjust, is fatal. 14
In People v. Yadao, 1954, this Court through then Justice Cesar Bengzon who later became Chief
Justice of the Court affirmed an order of the trial court which quashed an Information wherein the
facts recited did not constitute a public offense as defined in Section 1, Republic Act 145. 15

G. The filing of these Petitions was unnecessary because the People could have availed itself of
other available remedies below.

Pertinent provisions of the Rules of Court follow:

Rule 117, Section 7. Effect of sustaining the motion to quash. If the motion to
quash is sustained the court may order that another information be filed. If such
order is made the defendant, if in custody, shall remain so unless he shall be
admitted to bail. If such order is not made or if having been made another
information is not filed withuntime to be specified in the order, or within such further
time as the court may allow for good cause shown, the defendant, if in custody, shall
be discharged therefrom, unless he is in custody on some other charge.

Rule 110, Section 13. Amendment. The information or complaint may be

amended, in substance or form, without leave of court, at any time before the
defendant pleads; and thereafter and during the trial as to all matters of form, by
leave and at the discretion of the court, when the same can be done without
prejudice to the rights of the defendant.

xxx xxx xxx

Two courses of action were open to Petitioner upon the quashing of the Informations in these
cases, viz:

First, if the evidence on hand so warranted, the People could have filed an amended Information to
include the second element of the offense as defined in the disputed orders of respondent Judges.
We have ruled that if the facts alleged in the Information do not constitute a punishable offense, the
case should not be dismissed but the prosecution should be given an opportunity to amend the
Information. 16

Second, if the facts so justified, the People could have filed a complaint either under Section 26 of
Act No. 1780, quoted earlier, or Manila City Ordinance No. 3820, as amended by Ordinance No.
3928, especially since in most if not all of the cases, the dismissal was made prior to arraignment of
the accused and on a motion to quash.

Section 8. Rule 117 states that:

An order sustaining the motion to quash is not a bar to another prosecution for the
same offense unless the motion was based on the grounds specified in section 2,
subsections (f) and (h) of this rule.

Under the foregoing, the filing of another complaint or Information is barred only when the criminal
action or liability had been extinguished (Section 2[f]) or when the motion to quash was granted for
reasons of double jeopardy. (ibid., [h])
As to whether or not a plea of double jeopardy may be successfully invoked by the accused in all
these cases should new complaints be filed against them, is a matter We need not resolve for the
present.

H. We conclude with high expectations that police authorities and the prosecuting arm of the
government true to the oath of office they have taken will exercise utmost circumspection and good
faith in evaluating the particular circumstances of a case so as to reach a fair and just conclusion if a
situation falls within the purview of P.D. 9(3) and the prosecution under said decree is warranted and
justified. This obligation becomes a sacred duty in the face of the severe penalty imposed for the
offense.

On this point, We commend the Chief State Prosecutor Rodolfo A. Nocon on his letter to the City
Fiscal of Manila on October 15, 1975, written for the Secretary, now Minister of Justice, where he
stated the following:

In any case, please study well each and every case of this nature so that persons
accused of carrying bladed weapons, specially those whose purpose is not to
subvert the duly constituted authorities, may not be unduly indicted for the serious
offenses falling under P.D. No. 9. 17

Yes, while it is not within the power of courts of justice to inquire into the wisdom of a law, it is
however a judicial task and prerogative to determine if official action is within the spirit and letter of
the law and if basic fundamental rights of an individual guaranteed by the Constitution are not
violated in the process of its implementation. We have to face the fact that it is an unwise and unjust
application of a law, necessary and justified under prevailing circumstances, which renders the
measure an instrument of oppression and evil and leads the citizenry to lose their faith in their
government.

WHEREFORE, We DENY these 26 Petitions for Review and We AFFIRM the Orders of respondent
Judges dismissing or quashing the Information concerned, subject however to Our observations
made in the preceding pages 23 to 25 of this Decision regarding the right of the State or Petitioner
herein to file either an amended Information under Presidential Decree No. 9, paragraph 3, or a new
one under other existing statute or city ordinance as the facts may warrant.

Without costs.

SO ORDERED.

Fernando, Teehankee, Santos, Fernandez and Guerrero, JJ., concur.

Castro, C.J. and Antonio, J, concur in the result.

Aquino, J, took no part.

Article 11-12 (Full Text Cases)

Republic of the Philippines
SUPREME COURT
Manila
 EN BANC

G.R. No. L-5691 December 27, 1910

S. D. MARTINEZ and his wife, CARMEN ONG DE MARTINEZ, plaintiffs-appellees,

vs.
WILLIAM VAN BUSKIRK, defendant-appellant.

Lionel D. Hargis for appellant.

Sanz and Oppisso for appellee.

MORELAND, J.:

The facts found by the trial court are undisputed by either party in this case. They are

That on the 11th day of September, 1908, the plaintiff, Carmen Ong de Martinez, was riding
in a carromata on Calle Real, district of Ermita, city of Manila, P.I., along the left-hand side of
the street as she was going, when a delivery wagon belonging to the defendant used for the
purpose of transportation of fodder by the defendant, and to which was attached a pair of
horses, came along the street in the opposite direction to that the in which said plaintiff was
proceeding, and that thereupon the driver of the said plaintiff's carromata, observing that the
delivery wagon of the defendant was coming at great speed, crowded close to the sidewalk
on the left-hand side of the street and stopped, in order to give defendant's delivery wagon
an opportunity to pass by, but that instead of passing by the defendant's wagon and horses
ran into the carromata occupied by said plaintiff with her child and overturned it, severely
wounding said plaintiff by making a serious cut upon her head, and also injuring the
carromata itself and the harness upon the horse which was drawing it.

xxx xxx xxx

These facts are not dispute, but the defendant presented evidence to the effect that the
cochero, who was driving his delivery wagon at the time the accident occurred, was a good
servant and was considered a safe and reliable cochero; that the delivery wagon had sent to
deliver some forage at Paco Livery Stable on Calle Herran, and that for the purpose of
delivery thereof the cochero driving the team as defendant's employee tied the driving lines
of the horses to the front end of the delivery wagon and then went back inside of the wagon
for the purpose of unloading the forage to be delivered; that while unloading the forage and
in the act of carrying some of it out, another vehicle drove by, the driver of which cracked a
whip and made some other noises, which frightened the horses attached to the delivery
wagon and they ran away, and the driver was thrown from the inside of the wagon out
through the rear upon the ground and was unable to stop the horses; that the horses then
ran up and on which street they came into collision with the carromata in which the plaintiff,
Carmen Ong de Martinez, was riding.

The defendant himself was not with the vehicle on the day in question.

Upon these facts the court below found the defendant guilty of negligence and gave judgment
against him for P442.50, with interest thereon at the rate of 6 per cent per annum from the 17th day
of October, 1908, and for the costs of the action. The case is before us on an appeal from that
judgment.

There is no general law of negligence in the Philippine Islands except that embodied in the Civil
Code. The provisions of that code pertinent to this case are

Art. 1902. A person who by an act or omission causes damage to another when there is fault
or negligence shall be obliged to repair the damage so done.

Art. 1903. The obligation imposed by preceding article is demandable, not only for personal
acts and omissions, but also for those of the persons for whom they should be responsible.

The father, and on his death or incapacity the mother, is liable for the damages caused by
the minors who live with them.

Guardians are liable for the damages caused by minors or incapacitated persons who are
under their authority and live with them.

Owners of directors of an establishment or enterprise are equally liable for the damages
caused by the employees in the service of the branches in which the latter may be employed
or on account of their duties.

The State is liable in this sense when it acts through a special agent, but not when the
damages should have been caused by the official to whom properly it pertained to do the act
performed, in which case the provisions of the preceding article shall be applicable.

Finally, masters or directors of arts and trades are liable for the damages caused by their
pupils or apprentices while they are under their custody.

The liability referred to in this article shall cease when the persons mentioned therein prove
that they employed all the diligence of a good father of a family to avoid the damage.

Passing the question whether or not an employer who has furnished a gentle and tractable team and
a trusty and capable driver is, under the last paragraph of the above provisions, liable for the
negligence of such driver in handling the team, we are of the opinion that the judgment must be
reversed upon the ground that the evidence does not disclose that the cochero was negligent.

While the law relating to negligence in this jurisdiction may possibly be some what different from that
in Anglo-Saxon countries, a question we do not now discuss, the rules under which the fact of
negligence is determined are, nevertheless, generally the same. That is to say, while the law
designating the person responsible for a negligent act may not be the same here as in many
jurisdictions, the law determining what is a negligent act is the same here, generally speaking, as
elsewhere. (Supreme court of Spain, 4 December, 1903; 16 May, 1893; 27 June, 1894; 9 April, 1896;
14 March, 1901; 2 March, 1904; 7 February, 1905; 16 June, 1905; 23 June, 1905; 13 April, 1903; 7
March, 1902; 12 June, 1900; 2 March, 1907; 18 March, 1898; 3 June, 1901.)

It appears from the undisputed evidence that the horses which caused the damage were gentle and
tractable; that the cochero was experienced and capable; that he had driven one of the horses
several years and the other five or six months; that he had been in the habit, during all that time, of
leaving them in the condition in which they were left on the day of the accident; that they had never
run away up to that time and there had been, therefore, no accident due to such practice; that to
leave the horses and assist in unloading the merchandise in the manner described on the day of the
accident was the custom of all cochero who delivered merchandise of the character of that which
was being delivered by the cochero of the defendant on the day in question, which custom was
sanctioned by their employers.

In our judgment, the cochero of the defendant was not negligent in leaving the horses in the manner
described by the evidence in this case, either under Spanish or American jurisprudence.
(Lynch vs. Nurdin, 1 Q. B., 422; Rumsey vs. Nelson, 58 Vt., 590; Drake vs. Mount, 33 N. J. L., 442;
Hoboken Land and Improvement Co. vs. Lally, 48 N. J. L., 604; Wasmer vs. D. L. & W. R. R. Co., 80
N. Y., 212.)lawphi1.net

In the case of Hayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170), Lord Kenyon said:

He was performing his duty while removing the goods into the house, and, if every person
who suffered a cart to remain in the street while he took goods out of it was obliged to
employ another to look after the horses, it would be impossible for the business of the
metropolis to go on.

In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said:

The degree of care required of the plaintiff, or those in charged of his horse, at the time of
the injury, is that which would be exercised by a person of ordinary care and prudence under
like circumstances. It can not be said that the fact of leaving the horse unhitched is in itself
negligence. Whether it is negligence to leave a horse unhitched must be depend upon the
disposition of the horse; whether he was under the observation and control of some person
all the time, and many other circumstances; and is a question to be determined by the jury
from the facts of each case.

In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it was error on the part of the trial
court to refuse to charge that "it is not negligence for the driver of a quite, gentle horse to leave him
unhitched and otherwise unattended on the side of a public highways while the driver is upon the
sidewalk loading goods on the wagon." The said court closed its opinion with these words:

There was evidence which could have fully justified the jury in finding that the horse was
quite and gentle, and that the driver was upon the sidewalk loading goods on the wagon, at
time of the alleged injury, and that the horse had been used for years in that way without
accident. The refusal of the trial court to charge as requested left the jury free to find was
verdict against the defendant, although the jury was convinced that these facts were
proven. lawphil.net

In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held:

That evidence that a servant, whom traders employed to deliver goods, upon stopping with
his horse and wagon to deliver a parcel at a house from fifty to a hundred rods from a
railroad crossing, left the horse unfastened for four or five minutes while he was in the house,
knowing that it was not afraid of cars, and having used it for three or four months without
ever hitching it or knowing it to start, is not conclusive, as a matter of law, of a want of due
care on his part.

The duty, a violation of which is claimed to be negligence in the respect in question, is to exercise
reasonable care and prudence. Where reasonable care is employed in doing an act not itself illegal
or inherently likely to produce damage to others, there will be no liability, although damage in fact
ensues. (Milwaukee Ry. Co. vs. Arms, 91 U. S., 489; Parrott vs. Wells, 15 Wall., 524;
Brown vs. Kendall, 6 Cushing, 292; Jackson Architectural Iron Works vs.Hurlbut, 158 N. Y., 34
Westerfield vs. Levis, 43 La. An., 63; Niosi vs. Empire Steam Laundry, 117 Cal., 257.)

The act of defendant's driver in leaving the horses in the manner proved was not unreasonable or
imprudent. Acts the performance of which has not proved destructive or injurious and which have,
therefore, been acquiesced in by society for so long a time that they have ripened into custom, can
not be held to be themselves unreasonable or imprudent. Indeed the very reason why they have
been permitted by society is that they beneficial rather than prejudicial. Accidents sometimes
itc-alf

happen and injuries result from the most ordinary acts of life. But such are not their natural or
customary results. To hold that, because such an act once resulted in accident or injury, the actor is
necessarily negligent, is to go far. The fact that the doctrine of res ipsa loquitur is sometimes
successfully invoked in such a case, does not in any sense militate against the reasoning presented.
That maxim at most only creates a prima facie case, and that only in the absence of proof of the
circumstances under which the act complained of was performed. It is something invoked in favor of
the plaintiff before defendant's case showing the conditions and circumstances under which the
injury occurred, the creative reason for the doctrine of res ipsa loquitur disappears. This is
demonstrated by the case of Inland and Seaboard Costing Co. vs. Tolson (139 U.S., 551), where the
court said (p. 554):

. . . The whole effect of the instruction in question, as applied to the case before the jury, was
that if the steamboat, on a calm day and in smooth water, was thrown with such force against
a wharf properly built, as to tear up some of the planks of the flooring, this would be prima
facie evidence of negligence on the part of the defendant's agent in making the landing,
unless upon the whole evidence in the case this prima facieevidence was rebutted. As such
damage to a wharf is not ordinarily done by a steamboat under control of her officers and
carefully managed by them, evidence that such damage was done in this case was prima
facie, and, if unexplained, sufficient evidence of negligence on their part, and the jury might
properly be so instructed.

There was presented in this case, and by the plaintiffs themselves, not only the fact of the runway
and the accident resulting therefrom, but also the conditions under which the runaway occurred.
Those conditions showing of themselves that the defendant's cochero was not negligent in the
management of the horse, the prima faciecase in plaintiffs' favor, if any, was destroyed as soon as
made.

It is a matter of common knowledge as well as proof that it is the universal practice of merchants to
deliver merchandise of the kind of that being delivered at the time of the injury, in the manner in
which that was then being delivered; and that it is the universal practice to leave the horses in the
manner in which they were left at the time of the accident. This is the custom in all cities. It has not
been productive of accidents or injuries. The public, finding itself unprejudiced by such practice, has
acquiesced for years without objection. Ought the public now, through the courts, without prior
objection or notice, to be permitted to reverse the practice of decades and thereby make culpable
and guilty one who had every reason and assurance to believe that he was acting under the
sanction of the strongest of all civil forces, the custom of a people? We think not.

The judgement is reversed, without special finding as to costs. So ordered.

Arellano, C. J., Mapa, Johnson, Carson and Trent, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-55960 November 24, 1988

YAO KEE, SZE SOOK WAH, SZE LAI CHO, and SY CHUN YEN, petitioners,
vs.
AIDA SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE, RODOLFO SY, and HONORABLE
COURT OF APPEALS, respondents.

Montesa, Albon, & Associates for petitioners.

De Lapa, Salonga, Fulgencio & De Lunas for respondents.

CORTES, J.:

Sy Kiat, a Chinese national. died on January 17, 1977 in Caloocan City where he was then residing,
leaving behind real and personal properties here in the Philippines worth P300,000.00 more or less.

Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy filed a petition for the
grant of letters of administration docketed as Special Proceedings Case No. C-699 of the then Court
of First Instance of Rizal Branch XXXIII, Caloocan City. In said petition they alleged among others
that (a) they are the children of the deceased with Asuncion Gillego; (b) to their knowledge Sy Mat
died intestate; (c) they do not recognize Sy Kiat's marriage to Yao Kee nor the filiation of her children
to him; and, (d) they nominate Aida Sy-Gonzales for appointment as administratrix of the intestate
estate of the deceased [Record on Appeal, pp. 4-9; Rollo, p. 107.]

The petition was opposed by Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Yun Chen who alleged
that: (a) Yao Kee is the lawful wife of Sy Kiat whom he married on January 19, 1931 in China; (b) the
other oppositors are the legitimate children of the deceased with Yao Kee; and, (c) Sze Sook Wah is
the eldest among them and is competent, willing and desirous to become the administratrix of the
estate of Sy Kiat [Record on Appeal, pp. 12-13; Rollo, p. 107.] After hearing, the probate court,
finding among others that:

(1) Sy Kiat was legally married to Yao Kee [CFI decision, pp. 12-27; Rollo, pp. 49-64;]

(2) Sze Sook Wah, Sze Lai Cho and Sze Chun Yen are the legitimate children of Yao
Kee with Sy Mat [CFI decision, pp. 28-31; Rollo. pp. 65-68;] and,

(3) Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy are the
acknowledged illegitimate offsprings of Sy Kiat with Asuncion Gillego [CFI decision,
pp. 27-28; Rollo, pp. 64- 65.]

held if favor of the oppositors (petitioners herein) and appointed Sze Sook Wah as the administratrix
of the intestate estate of the deceased [CFI decision, pp. 68-69; Rollo, pp. 105-106.]
On appeal the Court of Appeals rendered a decision modifying that of the probate court, the
dispositive portion of which reads:

IN VIEW OF THE FOREGOING, the decision of the lower Court is hereby

MODIFIED and SET ASIDE and a new judgment rendered as follows:

(1) Declaring petitioners Aida Sy-Gonzales, Manuel Sy, Teresita Sy- Bernabe and
Rodolfo Sy acknowledged natural children of the deceased Sy Kiat with Asuncion
Gillego, an unmarried woman with whom he lived as husband and wife without
benefit of marriage for many years:

(2) Declaring oppositors Sze Sook Wah, Sze Lai Chu and Sze Chun Yen, the
acknowledged natural children of the deceased Sy Kiat with his Chinese wife Yao
Kee, also known as Yui Yip, since the legality of the alleged marriage of Sy Mat to
Yao Kee in China had not been proven to be valid to the laws of the Chinese
People's Republic of China (sic);

(3) Declaring the deed of sale executed by Sy Kiat on December 7, 1976 in favor of
Tomas Sy (Exhibit "G-1", English translation of Exhibit "G") of the Avenue Tractor and
Diesel Parts Supply to be valid and accordingly, said property should be excluded
from the estate of the deceased Sy Kiat; and

(4) Affirming the appointment by the lower court of Sze Sook Wah as judicial
administratrix of the estate of the deceased. [CA decision, pp. 11-12; Rollo, pp. 36-
37.]

From said decision both parties moved for partial reconsideration, which was however denied by
respondent court. They thus interposed their respective appeals to this Court.

Private respondents filed a petition with this Court docketed as G.R. No. 56045 entitled "Aida Sy-
Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy v. Court of Appeals, Yao Kee, Sze Sook
Wah, Sze Lai Cho and Sy Chun Yen" questioning paragraphs (3) and (4) of the dispositive portion of
the Court of Appeals' decision. The Supreme Court however resolved to deny the petition and the
motion for reconsideration. Thus on March 8, 1982 entry of judgment was made in G.R. No.
56045. **

The instant petition, on the other hand, questions paragraphs (1) and (2) of the dispositive portion of
the decision of the Court of Appeals. This petition was initially denied by the Supreme Court on June
22, 1981. Upon motion of the petitioners the Court in a resolution dated September 16, 1981
reconsidered the denial and decided to give due course to this petition. Herein petitioners assign the
following as errors:

I. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DECLARING THE

MARRIAGE OF SY KIAT TO YAO YEE AS NOT HAVE (sic) BEEN PROVEN VALID
IN ACCORDANCE WITH LAWS OF THE PEOPLE'S REPUBLIC OF CHINA.

II. RESPONDENT COURT OF APPEALS GRAVELY ERRED IN DECLARING AIDA

SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE AND RODOLFO SY AS
NATURAL CHILDREN OF SY KIAT WITH ASUNCION GILLEGO. [Petition, p. 2;
Rollo, p. 6.]
I. Petitioners argue that the marriage of Sy Kiat to Yao Kee in accordance with Chinese law and
custom was conclusively proven. To buttress this argument they rely on the following testimonial and
documentary evidence.

First, the testimony of Yao Kee summarized by the trial court as follows:

Yao Kee testified that she was married to Sy Kiat on January 19, 1931 in Fookien,
China; that she does not have a marriage certificate because the practice during that
time was for elders to agree upon the betrothal of their children, and in her case, her
elder brother was the one who contracted or entered into [an] agreement with the
parents of her husband; that the agreement was that she and Sy Mat would be
married, the wedding date was set, and invitations were sent out; that the said
agreement was complied with; that she has five children with Sy Kiat, but two of them
died; that those who are alive are Sze Sook Wah, Sze Lai Cho, and Sze Chun Yen,
the eldest being Sze Sook Wah who is already 38 years old; that Sze Sook Wah was
born on November 7, 1939; that she and her husband, Sy Mat, have been living in
FooKien, China before he went to the Philippines on several occasions; that the
practice during the time of her marriage was a written document [is exchanged] just
between the parents of the bride and the parents of the groom, or any elder for that
matter; that in China, the custom is that there is a go- between, a sort of marriage
broker who is known to both parties who would talk to the parents of the bride-to-be;
that if the parents of the bride-to-be agree to have the groom-to-be their son in-law,
then they agree on a date as an engagement day; that on engagement day, the
parents of the groom would bring some pieces of jewelry to the parents of the bride-
to-be, and then one month after that, a date would be set for the wedding, which in
her case, the wedding date to Sy Kiat was set on January 19, 1931; that during the
wedding the bridegroom brings with him a couch (sic) where the bride would ride and
on that same day, the parents of the bride would give the dowry for her daughter and
then the document would be signed by the parties but there is no solemnizing officer
as is known in the Philippines; that during the wedding day, the document is signed
only by the parents of the bridegroom as well as by the parents of the bride; that the
parties themselves do not sign the document; that the bride would then be placed in
a carriage where she would be brought to the town of the bridegroom and before
departure the bride would be covered with a sort of a veil; that upon reaching the
town of the bridegroom, the bridegroom takes away the veil; that during her wedding
to Sy Kiat (according to said Chinese custom), there were many persons present;
that after Sy Kiat opened the door of the carriage, two old ladies helped her go down
the carriage and brought her inside the house of Sy Mat; that during her wedding, Sy
Chick, the eldest brother of Sy Kiat, signed the document with her mother; that as to
the whereabouts of that document, she and Sy Mat were married for 46 years
already and the document was left in China and she doubt if that document can still
be found now; that it was left in the possession of Sy Kiat's family; that right now, she
does not know the whereabouts of that document because of the lapse of many
years and because they left it in a certain place and it was already eaten by the
termites; that after her wedding with Sy Kiat, they lived immediately together as
husband and wife, and from then on, they lived together; that Sy Kiat went to the
Philippines sometime in March or April in the same year they were married; that she
went to the Philippines in 1970, and then came back to China; that again she went
back to the Philippines and lived with Sy Mat as husband and wife; that she begot
her children with Sy Kiat during the several trips by Sy Kiat made back to China. [CFI
decision, pp. 13-15; Rollo, pp. 50-52.]
Second, the testimony of Gan Ching, a younger brother of Yao Kee who stated that he was among
the many people who attended the wedding of his sister with Sy Kiat and that no marriage certificate
is issued by the Chinese government, a document signed by the parents or elders of the parties
being sufficient [CFI decision, pp. 15-16; Rollo, pp.
52-53.]

Third, the statements made by Asuncion Gillego when she testified before the trial court to the effect
that (a) Sy Mat was married to Yao Kee according to Chinese custom; and, (b) Sy Kiat's admission
to her that he has a Chinese wife whom he married according to Chinese custom [CFI decision, p.
17; Rollo, p. 54.]

Fourth, Sy Kiat's Master Card of Registered Alien issued in Caloocan City on October 3, 1972 where
the following entries are found: "Marital statusMarried"; "If married give name of spousesYao
Kee"; "Address-China; "Date of marriage1931"; and "Place of marriageChina" [Exhibit "SS-1".]

Fifth, Sy Kiat's Alien Certificate of Registration issued in Manila on January 12, 1968 where the
following entries are likewise found: "Civil statusMarried"; and, 'If married, state name and address
of spouseYao Kee Chingkang, China" [Exhibit "4".]

And lastly, the certification issued in Manila on October 28, 1977 by the Embassy of the People's
Republic of China to the effect that "according to the information available at the Embassy Mr. Sy
Kiat a Chinese national and Mrs. Yao Kee alias Yui Yip also Chinese were married on January 19,
1931 in Fukien, the People's Republic of China" [Exhibit "5".]

These evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat. However,
the same do not suffice to establish the validity of said marriage in accordance with Chinese law or
custom.

Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced)
as a social rule, legally binding and obligatory" [In the Matter of the Petition for Authority to Continue
Use of the Firm Name "Ozaeta, Romulo, de Leon, Mabanta and Reyes", July 30, 1979, SCRA 3, 12
citing JBL Reyes & RC Puno, Outline of Phil. Civil Law, Fourth Ed., Vol. 1, p. 7.] The law requires
that "a custom must be proved as a fact, according to the rules of evidence" [Article 12, Civil Code.]
On this score the Court had occasion to state that "a local custom as a source of right can not be
considered by a court of justice unless such custom is properly established by competent evidence
like any other fact" [Patriarca v. Orate, 7 Phil. 390, 395 (1907).] The same evidence, if not one of a
higher degree, should be required of a foreign custom.

The law on foreign marriages is provided by Article 71 of the Civil Code which states that:

Art. 71. All marriages performed outside the Philippines in accordance with the laws
in force in the country where they were performed and valid there as such, shall also
be valid in this country, except bigamous, Polygamous, or incestuous marriages, as
determined by Philippine law. (Emphasis supplied.) ***

Construing this provision of law the Court has held that to establish a valid foreign marriage two
things must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the
alleged foreign marriage by convincing evidence [Adong v. Cheong Seng Gee, 43 Phil. 43, 49
(1922).]
In proving a foreign law the procedure is provided in the Rules of Court. With respect to
an unwritten foreign law, Rule 130 section 45 states that:

SEC. 45. Unwritten law.The oral testimony of witnesses, skilled therein, is

admissible as evidence of the unwritten law of a foreign country, as are also printed
and published books of reports of decisions of the courts of the foreign country, if
proved to be commonly admitted in such courts.

Proof of a written foreign law, on the other hand, is provided for under Rule 132 section 25, thus:

SEC. 25. Proof of public or official record.An official record or an entry therein,
when admissible for any purpose, may be evidenced by an official publication thereof
or by a copy attested by the officer having the legal custody of the record, or by his
deputy, and accompanied, if the record is not kept in the Philippines, with a certificate
that such officer has the custody. If the office in which the record is kept is in a
foreign country, the certificate may be made by a secretary of embassy or legation,
consul general, consul, vice consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the record is kept
and authenticated by the seal of his office.

The Court has interpreted section 25 to include competent evidence like the testimony of a witness
to prove the existence of a written foreign law [Collector of Internal Revenue v. Fisher 110 Phil. 686,
700-701 (1961) citing Willamette Iron and Steel Works v. Muzzal, 61 Phil. 471 (1935).]

In the case at bar petitioners did not present any competent evidence relative to the law and custom
of China on marriage. The testimonies of Yao and Gan Ching cannot be considered as proof of
China's law or custom on marriage not only because they are
self-serving evidence, but more importantly, there is no showing that they are competent to testify on
the subject matter. For failure to prove the foreign law or custom, and consequently, the validity of
the marriage in accordance with said law or custom, the marriage between Yao Kee and Sy Kiat
cannot be recognized in this jurisdiction.

Petitioners contend that contrary to the Court of Appeals' ruling they are not duty bound to prove the
Chinese law on marriage as judicial notice thereof had been taken by this Court in the case of Sy
Joc Lieng v. Sy Quia [16 Phil. 137 (1910).]

This contention is erroneous. Well-established in this jurisdiction is the principle that Philippine courts
cannot take judicial notice of foreign laws. They must be alleged and proved as any other fact [Yam
Ka Lim v. Collector of Customs, 30 Phil. 46, 48 (1915); Fluemer v. Hix, 54 Phil. 610 (1930).]

Moreover a reading of said case would show that the party alleging the foreign marriage presented a
witness, one Li Ung Bieng, to prove that matrimonial letters mutually exchanged by the contracting
parties constitute the essential requisite for a marriage to be considered duly solemnized in China.
Based on his testimony, which as found by the Court is uniformly corroborated by authors on the
subject of Chinese marriage, what was left to be decided was the issue of whether or not the fact of
marriage in accordance with Chinese law was duly proven [Sy Joc Lieng v. Sy Quia, supra., at p.
160.]

Further, even assuming for the sake of argument that the Court has indeed taken judicial notice of
the law of China on marriage in the aforecited case, petitioners however have not shown any proof
that the Chinese law or custom obtaining at the time the Sy Joc Lieng marriage was celebrated in
1847 was still the law when the alleged marriage of Sy Kiat to Yao Kee took place in 1931 or eighty-
four (84) years later.

Petitioners moreover cite the case of U.S. v. Memoracion [34 Phil. 633 (1916)] as being applicable to
the instant case. They aver that the judicial pronouncement in the Memoracion case, that the
testimony of one of the contracting parties is competent evidence to show the fact of marriage, holds
true in this case.

The Memoracion case however is not applicable to the case at bar as said case did not concern a
foreign marriage and the issue posed was whether or not the oral testimony of a spouse is
competent evidence to prove the fact of marriage in a complaint for adultery.

Accordingly, in the absence of proof of the Chinese law on marriage, it should be presumed that it is
the same as ours *** [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March 31, 1965, 13 SCRA 552, 555.] Since Yao Kee admitted in her
testimony that there was no solemnizing officer as is known here in the Philippines [See Article 56, Civil Code] when her alleged marriage to
Sy Mat was celebrated [CFI decision, p. 14; Rollo, p. 51], it therefore follows that her marriage to Sy Kiat, even if true, cannot be recognized
in this jurisdiction [Wong Woo Yiu v. Vivo, supra., pp. 555-556.]

II. The second issue raised by petitioners concerns the status of private respondents.

Respondent court found the following evidence of petitioners' filiation:

(1) Sy Kiat's Master Card of Registered Alien where the following are entered:
"Children if any: give number of childrenFour"; and, "NameAll living in China"
[Exhibit "SS-1";]

(2) the testimony of their mother Yao Kee who stated that she had five children with
Sy Kiat, only three of whom are alive namely, Sze Sook Wah, Sze Lai Chu and Sze
Chin Yan [TSN, December 12, 1977, pp. 9-11;] and,

(3) an affidavit executed on March 22,1961 by Sy Kiat for presentation to the Local
Civil Registrar of Manila to support Sze Sook Wah's application for a marriage
license, wherein Sy Kiat expressly stated that she is his daughter [Exhibit "3".]

Likewise on the record is the testimony of Asuncion Gillego that Sy Kiat told her he has three
daughters with his Chinese wife, two of whomSook Wah and Sze Kai Choshe knows, and one
adopted son [TSN, December 6,1977, pp. 87-88.]

However, as petitioners failed to establish the marriage of Yao Kee with Sy Mat according to the laws
of China, they cannot be accorded the status of legitimate children but only that of acknowledged
natural children. Petitioners are natural children, it appearing that at the time of their conception Yao
Kee and Sy Kiat were not disqualified by any impediment to marry one another [See Art. 269, Civil
Code.] And they are acknowledged children of the deceased because of Sy Kiat's recognition of Sze
Sook Wah [Exhibit "3"] and its extension to Sze Lai Cho and Sy Chun Yen who are her sisters of the
full blood [See Art. 271, Civil Code.]

Private respondents on the other hand are also the deceased's acknowledged natural children with
Asuncion Gillego, a Filipina with whom he lived for twenty-five (25) years without the benefit of
marriage. They have in their favor their father's acknowledgment, evidenced by a compromise
agreement entered into by and between their parents and approved by the Court of First Instance on
February 12, 1974 wherein Sy Kiat not only acknowleged them as his children by Asuncion Gillego
but likewise made provisions for their support and future inheritance, thus:
 xxx xxx xxx

2. The parties also acknowledge that they are common-law husband and wife and
that out of such relationship, which they have likewise decided to definitely and
finally terminate effective immediately, they begot five children, namely: Aida Sy, born
on May 30, 1950; Manuel Sy, born on July 1, 1953; Teresita Sy, born on January 28,
1955; Ricardo Sy now deceased, born on December 14, 1956; and Rodolfo Sy, born
on May 7, 1958.

3. With respect to the AVENUE TRACTOR AND DIESEL PARTS SUPPLY ... , the
parties mutually agree and covenant that

(a) The stocks and merchandize and the furniture and equipments ...,
shall be divided into two equal shares between, and distributed to, Sy
Kiat who shall own
one-half of the total and the other half to Asuncion Gillego who shall
transfer the same to their children, namely, Aida Sy, Manuel Sy,
Teresita Sy, and Rodolfo Sy.

(b) the business name and premises ... shall be retained by Sy Kiat.
However, it shall be his obligation to give to the aforenamed children
an amount of One Thousand Pesos ( Pl,000.00 ) monthly out of the
rental of the two doors of the same building now occupied by Everett
Construction.

xxx xxx xxx

(5) With respect to the acquisition, during the existence of the

common-law husband-and-wife relationship between the parties, of the real estates
and properties registered and/or appearing in the name of Asuncion Gillego ... , the
parties mutually agree and covenant that the said real estates and properties shall
be transferred in equal shares to their children, namely, Aida Sy, Manuel Sy, Teresita
Sy, and Rodolfo Sy, but to be administered by Asuncion Gillego during her lifetime ...
[Exhibit "D".] (Emphasis supplied.)

xxx xxx xxx

This compromise agreement constitutes a statement before a court of record by which a child may
be voluntarily acknowledged [See Art. 278, Civil Code.]

Petitioners further argue that the questions on the validity of Sy Mat's marriage to Yao Kee and the
paternity and filiation of the parties should have been ventilated in the Juvenile and Domestic
Relations Court.

Specifically, petitioners rely on the following provision of Republic Act No. 5502, entitled "An Act
Revising Rep. Act No. 3278, otherwise known as the Charter of the City of Caloocan', with regard to
the Juvenile and Domestic Relations Court:

SEC. 91-A. Creation and Jurisdiction of the Court.

xxx xxx xxx

 The provisions of the Judiciary Act to the contrary notwithstanding, the court shall
have exclusive original jurisdiction to hear and decide the following cases:

xxx xxx xxx

(2) Cases involving custody, guardianship, adoption, revocation of adoption, paternity

and acknowledgment;

(3) Annulment of marriages, relief from marital obligations, legal separation of

spouses, and actions for support;

(4) Proceedings brought under the provisions of title six and title seven, chapters one
to three of the civil code;

xxx xxx xxx

and the ruling in the case of Bartolome v. Bartolome [G.R. No. L-23661, 21 SCRA 1324] reiterated in
Divinagracia v. Rovira [G.R. No. L-42615, 72 SCRA 307.]

With the enactment of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization
Act of 1980, the Juvenile and Domestic Relations Courts were abolished. Their functions and
jurisdiction are now vested with the Regional Trial Courts [See Section 19 (7), B.P. Blg. 129 and
Divinagracia v. Belosillo, G.R. No. L-47407, August 12, 1986, 143 SCRA 356, 360] hence it is no
longer necessary to pass upon the issue of jurisdiction raised by petitioners.

Moreover, even without the exactment of Batas Pambansa Blg. 129 we find in Rep. Act No. 5502
sec. 91-A last paragraph that:

xxx xxx xxx

If any question involving any of the above matters should arise as an incident in any
case pending in the ordinary court, said incident shall be determined in the main
case.

xxx xxx xxx

As held in the case of Divinagracia v. Rovira [G.R. No. L42615. August 10, 1976, 72 SCRA 307]:

xxx xxx xxx

It is true that under the aforequoted section 1 of Republic Act No. 4834 **** a case
involving paternity and acknowledgment may be ventilated as an incident in the intestate
or testate proceeding (See Baluyot vs. Ines Luciano, L-42215, July 13, 1976). But that
legal provision presupposes that such an administration proceeding is pending or existing
and has not been terminated. [at pp. 313-314.] (Emphasis supplied.)

xxx xxx xxx

The reason for ths rule is not only "to obviate the rendition of conflicting rulings on the same issue by
the Court of First Instance and the Juvenile and Domestic Relations Court" [Vda. de Baluyut v.
Luciano, G.R. No. L-42215, July 13, 1976, 72 SCRA 52, 63] but more importantly to prevent
multiplicity of suits. Accordingly, this Court finds no reversible error committed by respondent court.

WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Article 13 Cases
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 162155 August 28, 2007

COMMISSIONER OF INTERNAL REVENUE and ARTURO V. PARCERO in his official capacity

as Revenue District Officer of Revenue District No. 049 (Makati), Petitioners,
vs.
PRIMETOWN PROPERTY GROUP, INC., Respondent.

DECISION

CORONA, J.:

This petition for review on certiorari1 seeks to set aside the August 1, 2003 decision2 of the Court of
Appeals (CA) in CA-G.R. SP No. 64782 and its February 9, 2004 resolution denying
reconsideration.3

On March 11, 1999, Gilbert Yap, vice chair of respondent Primetown Property Group, Inc., applied
for the refund or credit of income tax respondent paid in 1997. In Yap's letter to petitioner revenue
district officer Arturo V. Parcero of Revenue District No. 049 (Makati) of the Bureau of Internal
Revenue (BIR),4 he explained that the increase in the cost of labor and materials and difficulty in
obtaining financing for projects and collecting receivables caused the real estate industry to
slowdown.5 As a consequence, while business was good during the first quarter of 1997, respondent
suffered losses amounting to P71,879,228 that year.6

According to Yap, because respondent suffered losses, it was not liable for income
taxes.7 Nevertheless, respondent paid its quarterly corporate income tax and remitted creditable
withholding tax from real estate sales to the BIR in the total amount of P26,318,398.32.8 Therefore,
respondent was entitled to tax refund or tax credit. 9

On May 13, 1999, revenue officer Elizabeth Y. Santos required respondent to submit additional
documents to support its claim.10 Respondent complied but its claim was not acted upon. Thus, on
April 14, 2000, it filed a petition for review11 in the Court of Tax Appeals (CTA).
On December 15, 2000, the CTA dismissed the petition as it was filed beyond the two-year
prescriptive period for filing a judicial claim for tax refund or tax credit.12 It invoked Section 229 of the
National Internal Revenue Code (NIRC):

Sec. 229. Recovery of Taxes Erroneously or Illegally Collected. -- No suit or proceeding shall be
maintained in any court for the recovery of any national internal revenue tax hereafter alleged to
have been erroneously or illegally assessed or collected, or of any penalty claimed to have been
collected without authority, or of any sum alleged to have been excessively or in any manner
wrongfully collected, until a claim for refund or credit has been duly filed with the Commissioner; but
such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid
under protest or duress.

In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from
the date of payment of the tax or penalty regardless of any supervening cause that may arise
after payment:Provided, however, That the Commissioner may, even without a claim therefor,
refund or credit any tax, where on the face of the return upon which payment was made, such
payment appears clearly to have been erroneously paid. (emphasis supplied)

The CTA found that respondent filed its final adjusted return on April 14, 1998. Thus, its right to claim
a refund or credit commenced on that date.13

The tax court applied Article 13 of the Civil Code which states:

Art. 13. When the law speaks of years, months, days or nights, it shall be understood that years are
of three hundred sixty-five days each; months, of thirty days; days, of twenty-four hours, and
nights from sunset to sunrise.

If the months are designated by their name, they shall be computed by the number of days which
they respectively have.

In computing a period, the first day shall be excluded, and the last included. (emphasis supplied)

Thus, according to the CTA, the two-year prescriptive period under Section 229 of the NIRC for the
filing of judicial claims was equivalent to 730 days. Because the year 2000 was a leap year,
respondent's petition, which was filed 731 days14 after respondent filed its final adjusted return, was
filed beyond the reglementary period.15

Respondent moved for reconsideration but it was denied. 16 Hence, it filed an appeal in the CA.17

On August 1, 2003, the CA reversed and set aside the decision of the CTA. 18 It ruled that Article 13 of
the Civil Code did not distinguish between a regular year and a leap year. According to the CA:

The rule that a year has 365 days applies, notwithstanding the fact that a particular year is a leap
year.19

In other words, even if the year 2000 was a leap year, the periods covered by April 15, 1998 to April
14, 1999 and April 15, 1999 to April 14, 2000 should still be counted as 365 days each or a total of
730 days. A statute which is clear and explicit shall be neither interpreted nor construed. 20

Petitioners moved for reconsideration but it was denied.21 Thus, this appeal.
Petitioners contend that tax refunds, being in the nature of an exemption, should be strictly
construed against claimants.22 Section 229 of the NIRC should be strictly applied against respondent
inasmuch as it has been consistently held that the prescriptive period (for the filing of tax refunds
and tax credits) begins to run on the day claimants file their final adjusted returns. 23 Hence, the claim
should have been filed on or before April 13, 2000 or within 730 days, reckoned from the time
respondent filed its final adjusted return.

The conclusion of the CA that respondent filed its petition for review in the CTA within the two-year
prescriptive period provided in Section 229 of the NIRC is correct. Its basis, however, is not.

The rule is that the two-year prescriptive period is reckoned from the filing of the final adjusted
return.24 But how should the two-year prescriptive period be computed?

As already quoted, Article 13 of the Civil Code provides that when the law speaks of a year, it is
understood to be equivalent to 365 days. In National Marketing Corporation v. Tecson,25 we ruled
that a year is equivalent to 365 days regardless of whether it is a regular year or a leap year. 26

However, in 1987, EO27 292 or the Administrative Code of 1987 was enacted. Section 31, Chapter
VIII, Book I thereof provides:

Sec. 31. Legal Periods. "Year" shall be understood to be twelve calendar months; "month" of
thirty days, unless it refers to a specific calendar month in which case it shall be computed according
to the number of days the specific month contains; "day", to a day of twenty-four hours and; "night"
from sunrise to sunset. (emphasis supplied)

A calendar month is "a month designated in the calendar without regard to the number of days it may
contain."28 It is the "period of time running from the beginning of a certain numbered day up to, but
not including, the corresponding numbered day of the next month, and if there is not a sufficient
number of days in the next month, then up to and including the last day of that month." 29 To illustrate,
one calendar month from December 31, 2007 will be from January 1, 2008 to January 31, 2008; one
calendar month from January 31, 2008 will be from February 1, 2008 until February 29, 2008. 30

A law may be repealed expressly (by a categorical declaration that the law is revoked and abrogated
by another) or impliedly (when the provisions of a more recent law cannot be reasonably reconciled
with the previous one).31Section 27, Book VII (Final Provisions) of the Administrative Code of 1987
states:

Sec. 27. Repealing clause. All laws, decrees, orders, rules and regulation, or portions thereof,
inconsistent with this Code are hereby repealed or modified accordingly.

A repealing clause like Sec. 27 above is not an express repealing clause because it fails to identify
or designate the laws to be abolished.32 Thus, the provision above only impliedly repealed all laws
inconsistent with the Administrative Code of 1987. 1avvphi1

Implied repeals, however, are not favored. An implied repeal must have been clearly and
unmistakably intended by the legislature. The test is whether the subsequent law encompasses
entirely the subject matter of the former law and they cannot be logically or reasonably reconciled. 33

Both Article 13 of the Civil Code and Section 31, Chapter VIII, Book I of the Administrative Code of
1987 deal with the same subject matter the computation of legal periods. Under the Civil Code, a
year is equivalent to 365 days whether it be a regular year or a leap year. Under the Administrative
Code of 1987, however, a year is composed of 12 calendar months. Needless to state, under the
Administrative Code of 1987, the number of days is irrelevant.

There obviously exists a manifest incompatibility in the manner of computing legal periods under the
Civil Code and the Administrative Code of 1987. For this reason, we hold that Section 31, Chapter
VIII, Book I of the Administrative Code of 1987, being the more recent law, governs the computation
of legal periods. Lex posteriori derogat priori.

Applying Section 31, Chapter VIII, Book I of the Administrative Code of 1987 to this case, the two-
year prescriptive period (reckoned from the time respondent filed its final adjusted return 34 on April
14, 1998) consisted of 24 calendar months, computed as follows:

April 15, 1998 to May 14, 1998

Year 1 1st calendar
month

May 15, 1998 to June 14, 1998

2nd calendar
month

June 15, 1998 to July 14, 1998

3rd calendar
month

July 15, 1998 to August 14, 1998

4th calendar
month

August 15, 1998 to September 14,

5th calendar 1998
month

September 15, to October 14, 1998

6th calendar 1998
month

October 15, 1998 to November 14, 1998

7th calendar
month

November 15, 1998 to December 14, 1998

8th calendar
month
 December 15, 1998 to January 14, 1999
9th calendar
month

January 15, 1999 to February 14, 1999

10th calendar
month

February 15, 1999 to March 14, 1999

11th calendar
month

March 15, 1999 to April 14, 1999

12th calendar
month

Year 2 April 15, 1999 to May 14, 1999

13th calendar
month

May 15, 1999 to June 14, 1999

14th calendar
month

June 15, 1999 to July 14, 1999

15th calendar
month

July 15, 1999 to August 14, 1999

16th calendar
month

August 15, 1999 to September 14,

17th calendar 1999
month

September 15, to October 14, 1999

18th calendar 1999
month

October 15, 1999 to November 14, 1999

19th calendar
 month

November 15, 1999 to December 14, 1999

20th calendar
month

December 15, 1999 to January 14, 2000

21st calendar
month

January 15, 2000 to February 14, 2000

22nd calendar
month

February 15, 2000 to March 14, 2000

23rd calendar
month

March 15, 2000 to April 14, 2000

24th calendar
month

We therefore hold that respondent's petition (filed on April 14, 2000) was filed on the last day of the
24th calendar month from the day respondent filed its final adjusted return. Hence, it was filed within
the reglementary period.

Accordingly, the petition is hereby DENIED. The case is REMANDED to the Court of Tax Appeals
which is ordered to expeditiously proceed to hear C.T.A. Case No. 6113 entitled Primetown Property
Group, Inc. v. Commissioner of Internal Revenue and Arturo V. Parcero.

No costs.

SO ORDERED.

RENATO C. CORONA
Associate Justice
 Article 15-17 (Full Text Cases)

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-22595 November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,

vs.
ANDRE BRIMO, opponent-appellant.

Ross, Lawrence and Selph for appellant.

Camus and Delgado for appellee.

ROMUALDEZ, J.:

The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.

The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers
of the deceased, opposed it. The court, however, approved it.

The errors which the oppositor-appellant assigns are:

(1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the
denial of the motion for reconsideration of the order approving the partition; (4) the approval of the
purchase made by the Pietro Lana of the deceased's business and the deed of transfer of said
business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure
not to postpone the approval of the scheme of partition and the delivery of the deceased's business
to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws.

The appellant's opposition is based on the fact that the partition in question puts into effect the
provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish
nationality, for which reason they are void as being in violation or article 10 of the Civil Code which,
among other things, provides the following:

Nevertheless, legal and testamentary successions, in respect to the order of succession as

well as to the amount of the successional rights and the intrinsic validity of their provisions,
shall be regulated by the national law of the person whose succession is in question,
whatever may be the nature of the property or the country in which it may be situated.

But the fact is that the oppositor did not prove that said testimentary dispositions are not in
accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the
Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to
be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it
when he desires to be given an opportunity to present evidence on this point; so much so that he
assigns as an error of the court in not having deferred the approval of the scheme of partition until
the receipt of certain testimony requested regarding the Turkish laws on the matter.

The refusal to give the oppositor another opportunity to prove such laws does not constitute an error.
It is discretionary with the trial court, and, taking into consideration that the oppositor was granted
ample opportunity to introduce competent evidence, we find no abuse of discretion on the part of the
court in this particular. There is, therefore, no evidence in the record that the national law of the
testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being
contrary to our laws in force, must be complied with and executed. lawphil.net

Therefore, the approval of the scheme of partition in this respect was not erroneous.

In regard to the first assignment of error which deals with the exclusion of the herein appellant as a
legatee, inasmuch as he is one of the persons designated as such in will, it must be taken into
consideration that such exclusion is based on the last part of the second clause of the will, which
says:

Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship
having been conferred upon me by conquest and not by free choice, nor by nationality and,
on the other hand, having resided for a considerable length of time in the Philippine Islands
where I succeeded in acquiring all of the property that I now possess, it is my wish that the
distribution of my property and everything in connection with this, my will, be made and
disposed of in accordance with the laws in force in the Philippine islands, requesting all of my
relatives to respect this wish, otherwise, I annul and cancel beforehand whatever disposition
found in this will favorable to the person or persons who fail to comply with this request.

The institution of legatees in this will is conditional, and the condition is that the instituted legatees
must respect the testator's will to distribute his property, not in accordance with the laws of his
nationality, but in accordance with the laws of the Philippines.

If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the
herein oppositor who, by his attitude in these proceedings has not respected the will of the testator,
as expressed, is prevented from receiving his legacy.

The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil
Code provides the following:

Impossible conditions and those contrary to law or good morals shall be considered as not
imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should
the testator otherwise provide.

And said condition is contrary to law because it expressly ignores the testator's national law when,
according to article 10 of the civil Code above quoted, such national law of the testator is the one to
govern his testamentary dispositions.

Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the
institution of legatees in said will is unconditional and consequently valid and effective even as to the
herein oppositor.
It results from all this that the second clause of the will regarding the law which shall govern it, and to
the condition imposed upon the legatees, is null and void, being contrary to law.

All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and
effective it not appearing that said clauses are contrary to the testator's national law.

Therefore, the orders appealed from are modified and it is directed that the distribution of this estate
be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees,
and the scheme of partition submitted by the judicial administrator is approved in all other respects,
without any pronouncement as to costs.

So ordered.

Street, Malcolm, Avancea, Villamor and Ostrand, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-68470 October 8, 1985

ALICE REYES VAN DORN, petitioner,

vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the
National Capital Region Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\

In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the
Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by
respondent Judge, which denied her Motion to Dismiss said case, and her Motion for
Reconsideration of the Dismissal Order, respectively.

The basic background facts are that petitioner is a citizen of the Philippines while private respondent
is a citizen of the United States; that they were married in Hongkong in 1972; that, after the
marriage, they established their residence in the Philippines; that they begot two children born on
April 4, 1973 and December 18, 1975, respectively; that the parties were divorced in Nevada, United
States, in 1982; and that petitioner has re-married also in Nevada, this time to Theodore Van Dorn.

Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the
Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila,
(the Galleon Shop, for short), is conjugal property of the parties, and asking that petitioner be
ordered to render an accounting of that business, and that private respondent be declared with right
to manage the conjugal property. Petitioner moved to dismiss the case on the ground that the cause
of action is barred by previous judgment in the divorce proceedings before the Nevada Court
wherein respondent had acknowledged that he and petitioner had "no community property" as of
June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case on the ground
that the property involved is located in the Philippines so that the Divorce Decree has no bearing in
the case. The denial is now the subject of this certiorari proceeding.

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to
appeal. certiorari and Prohibition are neither the remedies to question the propriety of an
interlocutory order of the trial Court. However, when a grave abuse of discretion was patently
committed, or the lower Court acted capriciously and whimsically, then it devolves upon this Court in
a certiorari proceeding to exercise its supervisory authority and to correct the error committed which,
in such a case, is equivalent to lack of jurisdiction. 1 Prohibition would then lie since it would be useless
and a waste of time to go ahead with the proceedings. 2 Weconsider the petition filed in this case within
the exception, and we have given it due course.

For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in
the Philippines.

Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property
because of the representation he made in the divorce proceedings before the American Court that
they had no community of property; that the Galleon Shop was not established through conjugal
funds, and that respondent's claim is barred by prior judgment.

For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail
over the prohibitive laws of the Philippines and its declared national policy; that the acts and
declaration of a foreign Court cannot, especially if the same is contrary to public policy, divest
Philippine Courts of jurisdiction to entertain matters within its jurisdiction.

For the resolution of this case, it is not necessary to determine whether the property relations
between petitioner and private respondent, after their marriage, were upon absolute or relative
community property, upon complete separation of property, or upon any other regime. The pivotal
fact in this case is the Nevada divorce of the parties.

The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who
appeared in person before the Court during the trial of the case. It also obtained jurisdiction over
private respondent who, giving his address as No. 381 Bush Street, San Francisco, California,
authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground
of incompatibility in the understanding that there were neither community property nor community
obligations. 3 As explicitly stated in the Power of Attorney he executed in favor of the law firm of KARP &
GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce proceedings:

xxx xxx xxx Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-12105 January 30, 1960

TESTATE ESTATE OF C. O. BOHANAN, deceased. PHILIPPINE TRUST CO., executor-appellee,

vs.
MAGDALENA C. BOHANAN, EDWARD C. BOHANAN, and MARY LYDIA BOHANAN, oppositors-
appellants.
Jose D. Cortes for appellants.
Ohnick, Velilla and Balonkita for appellee.

LABRADOR, J.:

Appeal against an order of the Court of First Instance of Manila, Hon. Ramon San Jose, presiding,
dismissing the objections filed by Magdalena C. Bohanan, Mary Bohanan and Edward Bohanan to
the project of partition submitted by the executor and approving the said project.

On April 24, 195 0, the Court of First Instance of Manila, Hon. Rafael Amparo, presiding, admitted to
probate a last will and testament of C. O. Bohanan, executed by him on April 23, 1944 in Manila. In
the said order, the court made the following findings:

According to the evidence of the opponents the testator was born in Nebraska and therefore
a citizen of that state, or at least a citizen of California where some of his properties are
located. This contention in untenable. Notwithstanding the long residence of the decedent in
the Philippines, his stay here was merely temporary, and he continued and remained to be a
citizen of the United States and of the state of his pertinent residence to spend the rest of his
days in that state. His permanent residence or domicile in the United States depended upon
his personal intent or desire, and he selected Nevada as his homicide and therefore at the
time of his death, he was a citizen of that state. Nobody can choose his domicile or
permanent residence for him. That is his exclusive personal right.

Wherefore, the court finds that the testator C. O. Bohanan was at the time of his death a
citizen of the United States and of the State of Nevada and declares that his will and
testament, Exhibit A, is fully in accordance with the laws of the state of Nevada and admits
the same to probate. Accordingly, the Philippine Trust Company, named as the executor of
the will, is hereby appointed to such executor and upon the filing of a bond in the sum of
P10,000.00, let letters testamentary be issued and after taking the prescribed oath, it may
enter upon the execution and performance of its trust. (pp. 26-27, R.O.A.).

It does not appear that the order granting probate was ever questions on appeal. The executor filed
a project of partition dated January 24, 1956, making, in accordance with the provisions of the will,
the following adjudications: (1) one-half of the residuary estate, to the Farmers and Merchants
National Bank of Los Angeles, California, U.S.A. in trust only for the benefit of testator's grandson
Edward George Bohanan, which consists of several mining companies; (2) the other half of the
residuary estate to the testator's brother, F.L. Bohanan, and his sister, Mrs. M. B. Galbraith, share
and share alike. This consist in the same amount of cash and of shares of mining stock similar to
those given to testator's grandson; (3) legacies of P6,000 each to his (testator) son, Edward Gilbert
Bohana, and his daughter, Mary Lydia Bohanan, to be paid in three yearly installments; (4) legacies
to Clara Daen, in the amount of P10,000.00; Katherine Woodward, P2,000; Beulah Fox, P4,000; and
Elizabeth Hastings, P2,000;

It will be seen from the above that out of the total estate (after deducting administration expenses) of
P211,639.33 in cash, the testator gave his grandson P90,819.67 and one-half of all shares of stock
of several mining companies and to his brother and sister the same amount. To his children he gave
a legacy of only P6,000 each, or a total of P12,000.

The wife Magadalena C. Bohanan and her two children question the validity of the testamentary
provisions disposing of the estate in the manner above indicated, claiming that they have been
deprived of the legitimate that the laws of the form concede to them.
The first question refers to the share that the wife of the testator, Magdalena C. Bohanan, should be
entitled to received. The will has not given her any share in the estate left by the testator. It is argued
that it was error for the trial court to have recognized the Reno divorce secured by the testator from
his Filipino wife Magdalena C. Bohanan, and that said divorce should be declared a nullity in this
jurisdiction, citing the case of Querubin vs.Querubin, 87 Phil., 124, 47 Off. Gaz., (Sup, 12) 315,
Cousins Hiz vs. Fluemer, 55 Phil., 852, Ramirez vs. Gmur, 42 Phil., 855 and Gorayeb vs. Hashim, 50
Phil., 22. The court below refused to recognize the claim of the widow on the ground that the laws of
Nevada, of which the deceased was a citizen, allow him to dispose of all of his properties without
requiring him to leave any portion of his estate to his wife. Section 9905 of Nevada Compiled Laws
of 1925 provides:

Every person over the age of eighteen years, of sound mind, may, by last will, dispose of all
his or her estate, real and personal, the same being chargeable with the payment of the
testator's debts.

Besides, the right of the former wife of the testator, Magdalena C. Bohanan, to a share in the
testator's estafa had already been passed upon adversely against her in an order dated June 19,
1955, (pp. 155-159, Vol II Records, Court of First Instance), which had become final, as Magdalena
C. Bohanan does not appear to have appealed therefrom to question its validity. On December 16,
1953, the said former wife filed a motion to withdraw the sum of P20,000 from the funds of the
estate, chargeable against her share in the conjugal property, (See pp. 294-297, Vol. I, Record,
Court of First Instance), and the court in its said error found that there exists no community property
owned by the decedent and his former wife at the time the decree of divorce was issued. As already
and Magdalena C. Bohanan may no longer question the fact contained therein, i.e. that there was no
community property acquired by the testator and Magdalena C. Bohanan during their converture.

Moreover, the court below had found that the testator and Magdalena C. Bohanan were married on
January 30, 1909, and that divorce was granted to him on May 20, 1922; that sometime in 1925,
Magdalena C. Bohanan married Carl Aaron and this marriage was subsisting at the time of the death
of the testator. Since no right to share in the inheritance in favor of a divorced wife exists in the State
of Nevada and since the court below had already found that there was no conjugal property between
the testator and Magdalena C. Bohanan, the latter can now have no longer claim to pay portion of
the estate left by the testator.

The most important issue is the claim of the testator's children, Edward and Mary Lydia, who had
received legacies in the amount of P6,000 each only, and, therefore, have not been given their
shares in the estate which, in accordance with the laws of the forum, should be two-thirds of the
estate left by the testator. Is the failure old the testator to give his children two-thirds of the estate left
by him at the time of his death, in accordance with the laws of the forum valid?

The old Civil Code, which is applicable to this case because the testator died in 1944, expressly
provides that successional rights to personal property are to be earned by the national law of the
person whose succession is in question. Says the law on this point:

Nevertheless, legal and testamentary successions, in respect to the order of succession as

well as to the extent of the successional rights and the intrinsic validity of their provisions,
shall be regulated by the national law of the person whose succession is in question,
whatever may be the nature of the property and the country in which it is found. (par. 2, Art.
10, old Civil Code, which is the same as par. 2 Art. 16, new Civil Code.)

In the proceedings for the probate of the will, it was found out and it was decided that the testator
was a citizen of the State of Nevada because he had selected this as his domicile and his
permanent residence. (See Decision dated April 24, 1950, supra). So the question at issue is
whether the estementary dispositions, especially hose for the children which are short of the legitime
given them by the Civil Code of the Philippines, are valid. It is not disputed that the laws of Nevada
allow a testator to dispose of all his properties by will (Sec. 9905, Complied Nevada Laws of
1925, supra). It does not appear that at time of the hearing of the project of partition, the above-
quoted provision was introduced in evidence, as it was the executor's duly to do. The law of Nevada,
being a foreign law can only be proved in our courts in the form and manner provided for by our
Rules, which are as follows:

SEC. 41. Proof of public or official record. An official record or an entry therein, when
admissible for any purpose, may be evidenced by an official publication thereof or by a copy
tested by the officer having the legal custody of he record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such officer
has the custody. . . . (Rule 123).

We have, however, consulted the records of the case in the court below and we have found that
during the hearing on October 4, 1954 of the motion of Magdalena C. Bohanan for withdrawal of
P20,000 as her share, the foreign law, especially Section 9905, Compiled Nevada Laws. was
introduced in evidence by appellant's (herein) counsel as Exhibits "2" (See pp. 77-79, VOL. II, and
t.s.n. pp. 24-44, Records, Court of First Instance). Again said laws presented by the counsel for the
executor and admitted by the Court as Exhibit "B" during the hearing of the case on January 23,
1950 before Judge Rafael Amparo (se Records, Court of First Instance, Vol. 1).

In addition, the other appellants, children of the testator, do not dispute the above-quoted provision
of the laws of the State of Nevada. Under all the above circumstances, we are constrained to hold
that the pertinent law of Nevada, especially Section 9905 of the Compiled Nevada Laws of 1925,
can be taken judicial notice of by us, without proof of such law having been offered at the hearing of
the project of partition.

As in accordance with Article 10 of the old Civil Code, the validity of testamentary dispositions are to
be governed by the national law of the testator, and as it has been decided and it is not disputed that
the national law of the testator is that of the State of Nevada, already indicated above, which allows
a testator to dispose of all his property according to his will, as in the case at bar, the order of the
court approving the project of partition made in accordance with the testamentary provisions, must
be, as it is hereby affirmed, with costs against appellants.

Paras, Bengzon, C.J., Padilla, Bautista Angelo and Endencia, JJ., concur.
Barrera, J., concurs in the result.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-23678 June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased.

PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.

BENGZON, J.P., J.:

This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First
Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in
Civil Case No. 37089 therein. 1wph1.t

The facts of the case are as follows:

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his
first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis,
George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis
Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children:
Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children:
Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after
all taxes, obligations, and expenses of administration are paid for, his distributable estate should be
divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen;
(b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam
Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the
remainder shall go to his seven surviving children by his first and second wives, namely: Edward A.
Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis,
and Dorothy E. Bellis, in equal shares. 1wph1.t

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His
will was admitted to probate in the Court of First Instance of Manila on September 15, 1958.

The People's Bank and Trust Company, as executor of the will, paid all the bequests therein
including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the
three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various
amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of
P120,000.00, which it released from time to time according as the lower court approved and allowed
the various motions or petitions filed by the latter three requesting partial advances on account of
their respective legacies.

On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its
"Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter
alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock
amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam
Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition,
the executor pursuant to the "Twelfth" clause of the testator's Last Will and Testament divided
the residuary estate into seven equal portions for the benefit of the testator's seven legitimate
children by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions
to the project of partition on the ground that they were deprived of their legitimes as illegitimate
children and, therefore, compulsory heirs of the deceased.

Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is
evidenced by the registry receipt submitted on April 27, 1964 by the executor. 1

After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on
April 30, 1964, issued an order overruling the oppositions and approving the executor's final account,
report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied
the national law of the decedent, which in this case is Texas law, which did not provide for legitimes.

Their respective motions for reconsideration having been denied by the lower court on June 11,
1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply
Texas law or Philippine law.

In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied
by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually
pertinent where the decedent is a national of one country, and a domicile of another. In the present
case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the
time of his death.2 So that even assuming Texas has a conflict of law rule providing that the
domiciliary system (law of the domicile) should govern, the same would not result in a reference
back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts
rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where
the properties are situated, renvoi would arise, since the properties here involved are found in the
Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be
presumed different from ours.3Appellants' position is therefore not rested on the doctrine of renvoi.
As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their
case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article
16 of the Civil Code.

Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent,
in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b)
the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the
capacity to succeed. They provide that

ART. 16. Real property as well as personal property is subject to the law of the country
where it is situated.

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may he the nature of the property and
regardless of the country wherein said property may be found.

ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.

Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that

Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, public policy and good customs shall not be rendered ineffective by laws
 or judgments promulgated, or by determinations or conventions agreed upon in a foreign
country.

prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct.
Precisely, Congressdeleted the phrase, "notwithstanding the provisions of this and the next
preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil
Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil
Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16
a specific provision in itself which must be applied in testate and intestate succession. As further
indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees
that capacity to succeed is to be governed by the national law of the decedent.

It is therefore evident that whatever public policy or good customs may be involved in our System of
legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For
it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's
national law. Specific provisions must prevail over general ones.

Appellants would also point out that the decedent executed two wills one to govern his Texas
estate and the other his Philippine estate arguing from this that he intended Philippine law to
govern his Philippine estate. Assuming that such was the decedent's intention in executing a
separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil.
867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in
accordance with Philippine law and not with his national law, is illegal and void, for his national law
cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code
states said national law should govern.

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and
that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic
validity of the provision of the will and the amount of successional rights are to be determined under
Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.

Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So
ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ.,
concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-16749 January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED.

ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor and
Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.

LABRADOR, J.:

This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr.,
presiding, in Special Proceeding No. 622 of said court, dated September 14, 1949, approving among
things the final accounts of the executor, directing the executor to reimburse Maria Lucy Christensen
the amount of P3,600 paid by her to Helen Christensen Garcia as her legacy, and declaring Maria
Lucy Christensen entitled to the residue of the property to be enjoyed during her lifetime, and in case
of death without issue, one-half of said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in
accordance with the provisions of the will of the testator Edward E. Christensen. The will was
executed in Manila on March 5, 1951 and contains the following provisions:

3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now Mrs.
Bernard Daney), who was born in the Philippines about twenty-eight years ago, and who is
now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.

4. I further declare that I now have no living ascendants, and no descendants except my
above named daughter, MARIA LUCY CHRISTENSEN DANEY.

xxx xxx xxx

7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to
Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was
baptized Christensen, is not in any way related to me, nor has she been at any time adopted
by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines,
the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency
the same to be deposited in trust for the said Maria Helen Christensen with the Davao
Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos
(P100.00), Philippine Currency per month until the principal thereof as well as any interest
which may have accrued thereon, is exhausted..

xxx xxx xxx

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA
LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665
Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest,
remainder, and residue of my property and estate, real, personal and/or mixed, of
whatsoever kind or character, and wheresoever situated, of which I may be possessed at my
death and which may have come to me from any source whatsoever, during her lifetime: ....

It is in accordance with the above-quoted provisions that the executor in his final account and project
of partition ratified the payment of only P3,600 to Helen Christensen Garcia and proposed that the
residue of the estate be transferred to his daughter, Maria Lucy Christensen.

Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar
as it deprives her (Helen) of her legitime as an acknowledged natural child, she having been
declared by Us in G.R. Nos. L-11483-84 an acknowledged natural child of the deceased Edward E.
Christensen. The legal grounds of opposition are (a) that the distribution should be governed by the
laws of the Philippines, and (b) that said order of distribution is contrary thereto insofar as it denies to
Helen Christensen, one of two acknowledged natural children, one-half of the estate in full
ownership. In amplification of the above grounds it was alleged that the law that should govern the
estate of the deceased Christensen should not be the internal law of California alone, but the entire
law thereof because several foreign elements are involved, that the forum is the Philippines and
even if the case were decided in California, Section 946 of the California Civil Code, which requires
that the domicile of the decedent should apply, should be applicable. It was also alleged that Maria
Helen Christensen having been declared an acknowledged natural child of the decedent, she is
deemed for all purposes legitimate from the time of her birth.

The court below ruled that as Edward E. Christensen was a citizen of the United States and of the
State of California at the time of his death, the successional rights and intrinsic validity of the
provisions in his will are to be governed by the law of California, in accordance with which a testator
has the right to dispose of his property in the way he desires, because the right of absolute dominion
over his property is sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d
952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor
Maria Helen Christensen, through counsel, filed various motions for reconsideration, but these were
denied. Hence, this appeal.

The most important assignments of error are as follows:

THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME
COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E.
CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN THE
INHERITANCE.

II

THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE
EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING FOR THE
APPLICATION OF INTERNAL LAW.

III

THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW,
PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE
TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE DECEASED
EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.

IV

THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION
SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.

THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS
HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN FULL
OWNERSHIP.
There is no question that Edward E. Christensen was a citizen of the United States and of the State
of California at the time of his death. But there is also no question that at the time of his death he
was domiciled in the Philippines, as witness the following facts admitted by the executor himself in
appellee's brief:

In the proceedings for admission of the will to probate, the facts of record show that the
deceased Edward E. Christensen was born on November 29, 1875 in New York City, N.Y.,
U.S.A.; his first arrival in the Philippines, as an appointed school teacher, was on July 1,
1901, on board the U.S. Army Transport "Sheridan" with Port of Embarkation as the City of
San Francisco, in the State of California, U.S.A. He stayed in the Philippines until 1904.

In December, 1904, Mr. Christensen returned to the United States and stayed there for the
following nine years until 1913, during which time he resided in, and was teaching school in
Sacramento, California.

Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in
1928, he again departed the Philippines for the United States and came back here the
following year, 1929. Some nine years later, in 1938, he again returned to his own country,
and came back to the Philippines the following year, 1939.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted
and approved by this Honorable Court, without prejudice to the parties adducing other
evidence to prove their case not covered by this stipulation of facts.1wph1.t

Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in
the Philippines during World War II. Upon liberation, in April 1945, he left for the United
States but returned to the Philippines in December, 1945. Appellees Collective Exhibits "6",
CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l",
"MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)

In April, 1951, Edward E. Christensen returned once more to California shortly after the
making of his last will and testament (now in question herein) which he executed at his
lawyers' offices in Manila on March 5, 1951. He died at the St. Luke's Hospital in the City of
Manila on April 30, 1953. (pp. 2-3)

In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded
by the fact that he was born in New York, migrated to California and resided there for nine years, and
since he came to the Philippines in 1913 he returned to California very rarely and only for short visits
(perhaps to relatives), and considering that he appears never to have owned or acquired a home or
properties in that state, which would indicate that he would ultimately abandon the Philippines and
make home in the State of California.

Sec. 16. Residence is a term used with many shades of meaning from mere temporary
presence to the most permanent abode. Generally, however, it is used to denote something
more than mere physical presence. (Goodrich on Conflict of Laws, p. 29)

As to his citizenship, however, We find that the citizenship that he acquired in California when he
resided in Sacramento, California from 1904 to 1913, was never lost by his stay in the Philippines,
for the latter was a territory of the United States (not a state) until 1946 and the deceased appears to
have considered himself as a citizen of California by the fact that when he executed his will in 1951
he declared that he was a citizen of that State; so that he appears never to have intended to
abandon his California citizenship by acquiring another. This conclusion is in accordance with the
following principle expounded by Goodrich in his Conflict of Laws.

The terms "'residence" and "domicile" might well be taken to mean the same thing, a place of
permanent abode. But domicile, as has been shown, has acquired a technical meaning.
Thus one may be domiciled in a place where he has never been. And he may reside in a
place where he has no domicile. The man with two homes, between which he divides his
time, certainly resides in each one, while living in it. But if he went on business which would
require his presence for several weeks or months, he might properly be said to have
sufficient connection with the place to be called a resident. It is clear, however, that, if he
treated his settlement as continuing only for the particular business in hand, not giving up his
former "home," he could not be a domiciled New Yorker. Acquisition of a domicile of choice
requires the exercise of intention as well as physical presence. "Residence simply requires
bodily presence of an inhabitant in a given place, while domicile requires bodily presence in
that place and also an intention to make it one's domicile." Residence, however, is a term
used with many shades of meaning, from the merest temporary presence to the most
permanent abode, and it is not safe to insist that any one use et the only proper one.
(Goodrich, p. 29)

The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil
Code of the Philippines, which is as follows:

ART. 16. Real property as well as personal property is subject to the law of the country
where it is situated.

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country where said property may be found.

The application of this article in the case at bar requires the determination of the meaning of the
term "national law" is used therein.

There is no single American law governing the validity of testamentary provisions in the United
States, each state of the Union having its own private law applicable to its citizens only and in force
only within the state. The "national law" indicated in Article 16 of the Civil Code above quoted can
not, therefore, possibly mean or apply to any general American law. So it can refer to no other than
the private law of the State of California.

The next question is: What is the law in California governing the disposition of personal property?
The decision of the court below, sustains the contention of the executor-appellee that under the
California Probate Code, a testator may dispose of his property by will in the form and manner he
desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant
invokes the provisions of Article 946 of the Civil Code of California, which is as follows:

If there is no law to the contrary, in the place where personal property is situated, it is
deemed to follow the person of its owner, and is governed by the law of his domicile.

The existence of this provision is alleged in appellant's opposition and is not denied. We have
checked it in the California Civil Code and it is there. Appellee, on the other hand, relies on the case
cited in the decision and testified to by a witness. (Only the case of Kaufman is correctly cited.) It is
argued on executor's behalf that as the deceased Christensen was a citizen of the State of
California, the internal law thereof, which is that given in the abovecited case, should govern the
determination of the validity of the testamentary provisions of Christensen's will, such law being in
force in the State of California of which Christensen was a citizen. Appellant, on the other hand,
insists that Article 946 should be applicable, and in accordance therewith and following the doctrine
of therenvoi, the question of the validity of the testamentary provision in question should be referred
back to the law of the decedent's domicile, which is the Philippines.

The theory of doctrine of renvoi has been defined by various authors, thus:

The problem has been stated in this way: "When the Conflict of Laws rule of the forum refers
a jural matter to a foreign law for decision, is the reference to the purely internal rules of law
of the foreign system; i.e., to the totality of the foreign law minus its Conflict of Laws rules?"

On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that
is, applied the Conflict of Laws rule of Illinois which referred the matter back to Michigan law.
But once having determined the the Conflict of Laws principle is the rule looked to, it is
difficult to see why the reference back should not have been to Michigan Conflict of Laws.
This would have resulted in the "endless chain of references" which has so often been
criticized be legal writers. The opponents of the renvoi would have looked merely to the
internal law of Illinois, thus rejecting the renvoi or the reference back. Yet there seems no
compelling logical reason why the original reference should be the internal law rather than to
the Conflict of Laws rule. It is true that such a solution avoids going on a merry-go-round, but
those who have accepted the renvoi theory avoid this inextricabilis circulas by getting off at
the second reference and at that point applying internal law. Perhaps the opponents of
the renvoi are a bit more consistent for they look always to internal law as the rule of
reference.

Strangely enough, both the advocates for and the objectors to the renvoi plead that greater
uniformity will result from adoption of their respective views. And still more strange is the fact
that the only way to achieve uniformity in this choice-of-law problem is if in the dispute the
two states whose laws form the legal basis of the litigation disagree as to whether
the renvoi should be accepted. If both reject, or both accept the doctrine, the result of the
litigation will vary with the choice of the forum. In the case stated above, had the Michigan
court rejected the renvoi, judgment would have been against the woman; if the suit had been
brought in the Illinois courts, and they too rejected the renvoi, judgment would be for the
woman. The same result would happen, though the courts would switch with respect to
which would hold liability, if both courts accepted the renvoi.

The Restatement accepts the renvoi theory in two instances: where the title to land is in
question, and where the validity of a decree of divorce is challenged. In these cases the
Conflict of Laws rule of the situs of the land, or the domicile of the parties in the divorce case,
is applied by the forum, but any further reference goes only to the internal law. Thus, a
person's title to land, recognized by the situs, will be recognized by every court; and every
divorce, valid by the domicile of the parties, will be valid everywhere. (Goodrich, Conflict of
Laws, Sec. 7, pp. 13-14.)

X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property

in Massachusetts, England, and France. The question arises as to how this property is to be
distributed among X's next of kin.
 Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict
of laws as to intestate succession to movables calls for an application of the law of the
deceased's last domicile. Since by hypothesis X's last domicile was France, the natural thing
for the Massachusetts court to do would be to turn to French statute of distributions, or
whatever corresponds thereto in French law, and decree a distribution accordingly. An
examination of French law, however, would show that if a French court were called upon to
determine how this property should be distributed, it would refer the distribution to the
national law of the deceased, thus applying the Massachusetts statute of distributions. So on
the surface of things the Massachusetts court has open to it alternative course of action: (a)
either to apply the French law is to intestate succession, or (b) to resolve itself into a French
court and apply the Massachusetts statute of distributions, on the assumption that this is
what a French court would do. If it accepts the so-called renvoidoctrine, it will follow the latter
course, thus applying its own law.

This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the
forum refers to a foreign law, the conflict-of-laws rule of which, in turn, refers the matter back
again to the law of the forum. This is renvoi in the narrower sense. The German term for this
judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-571.)

After a decision has been arrived at that a foreign law is to be resorted to as governing a
particular case, the further question may arise: Are the rules as to the conflict of laws
contained in such foreign law also to be resorted to? This is a question which, while it has
been considered by the courts in but a few instances, has been the subject of frequent
discussion by textwriters and essayists; and the doctrine involved has been descriptively
designated by them as the "Renvoyer" to send back, or the "Ruchversweisung", or the
"Weiterverweisung", since an affirmative answer to the question postulated and the operation
of the adoption of the foreign law in toto would in many cases result in returning the main
controversy to be decided according to the law of the forum. ... (16 C.J.S. 872.)

Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the
doctrine of renvoiis that the court of the forum, in determining the question before it, must
take into account the whole law of the other jurisdiction, but also its rules as to conflict of
laws, and then apply the law to the actual question which the rules of the other jurisdiction
prescribe. This may be the law of the forum. The doctrine of therenvoi has generally been
repudiated by the American authorities. (2 Am. Jur. 296)

The scope of the theory of renvoi has also been defined and the reasons for its application in a
country explained by Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp.
529-531. The pertinent parts of the article are quoted herein below:

The recognition of the renvoi theory implies that the rules of the conflict of laws are to be
understood as incorporating not only the ordinary or internal law of the foreign state or
country, but its rules of the conflict of laws as well. According to this theory 'the law of a
country' means the whole of its law.

xxx xxx xxx

Von Bar presented his views at the meeting of the Institute of International Law, at
Neuchatel, in 1900, in the form of the following theses:

(1) Every court shall observe the law of its country as regards the application of foreign laws.
 (2) Provided that no express provision to the contrary exists, the court shall respect:

(a) The provisions of a foreign law which disclaims the right to bind its nationals
abroad as regards their personal statute, and desires that said personal statute shall
be determined by the law of the domicile, or even by the law of the place where the
act in question occurred.

(b) The decision of two or more foreign systems of law, provided it be certain that one
of them is necessarily competent, which agree in attributing the determination of a
question to the same system of law.

xxx xxx xxx

If, for example, the English law directs its judge to distribute the personal estate of an
Englishman who has died domiciled in Belgium in accordance with the law of his domicile, he
must first inquire whether the law of Belgium would distribute personal property upon death
in accordance with the law of domicile, and if he finds that the Belgian law would make the
distribution in accordance with the law of nationality that is the English law he must
accept this reference back to his own law.

We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied
in In re Kaufman, Supra, its internal law. If the law on succession and the conflict of laws rules of
California are to be enforced jointly, each in its own intended and appropriate sphere, the principle
cited In re Kaufman should apply to citizens living in the State, but Article 946 should apply to such
of its citizens as are not domiciled in California but in other jurisdictions. The rule laid down of
resorting to the law of the domicile in the determination of matters with foreign element involved is in
accord with the general principle of American law that the domiciliary law should govern in most
matters or rights which follow the person of the owner.

When a man dies leaving personal property in one or more states, and leaves a will directing
the manner of distribution of the property, the law of the state where he was domiciled at the
time of his death will be looked to in deciding legal questions about the will, almost as
completely as the law of situs is consulted in questions about the devise of land. It is logical
that, since the domiciliary rules control devolution of the personal estate in case of intestate
succession, the same rules should determine the validity of an attempted testamentary
dispostion of the property. Here, also, it is not that the domiciliary has effect beyond the
borders of the domiciliary state. The rules of the domicile are recognized as controlling by the
Conflict of Laws rules at the situs property, and the reason for the recognition as in the case
of intestate succession, is the general convenience of the doctrine. The New York court has
said on the point: 'The general principle that a dispostiton of a personal property, valid at the
domicile of the owner, is valid anywhere, is one of the universal application. It had its origin in
that international comity which was one of the first fruits of civilization, and it this age, when
business intercourse and the process of accumulating property take but little notice of
boundary lines, the practical wisdom and justice of the rule is more apparent than ever.
(Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)

Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as the national
law is the internal law of California. But as above explained the laws of California have prescribed
two sets of laws for its citizens, one for residents therein and another for those domiciled in other
jurisdictions. Reason demands that We should enforce the California internal law prescribed for its
citizens residing therein, and enforce the conflict of laws rules for the citizens domiciled abroad. If we
must enforce the law of California as in comity we are bound to go, as so declared in Article 16 of
our Civil Code, then we must enforce the law of California in accordance with the express mandate
thereof and as above explained, i.e., apply the internal law for residents therein, and its conflict-of-
laws rule for those domiciled abroad.

It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place where
the property is situated" in Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code
of the Philippines and that the law to the contrary in the Philippines is the provision in said Article 16
that the national law of the deceased should govern. This contention can not be sustained. As
explained in the various authorities cited above the national law mentioned in Article 16 of our Civil
Code is the law on conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the
reference or return of the question to the law of the testator's domicile. The conflict of laws rule in
California, Article 946, Civil Code, precisely refers back the case, when a decedent is not domiciled
in California, to the law of his domicile, the Philippines in the case at bar. The court of the domicile
can not and should not refer the case back to California; such action would leave the issue incapable
of determination because the case will then be like a football, tossed back and forth between the two
states, between the country of which the decedent was a citizen and the country of his domicile. The
Philippine court must apply its own law as directed in the conflict of laws rule of the state of the
decedent, if the question has to be decided, especially as the application of the internal law of
California provides no legitime for children while the Philippine law, Arts. 887(4) and 894, Civil Code
of the Philippines, makes natural children legally acknowledged forced heirs of the parent
recognizing them.

The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105;
Miciano vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs.
Government, 59 Phil. 293.) cited by appellees to support the decision can not possibly apply in the
case at bar, for two important reasons, i.e., the subject in each case does not appear to be a citizen
of a state in the United States but with domicile in the Philippines, and it does not appear in each
case that there exists in the state of which the subject is a citizen, a law similar to or identical with
Art. 946 of the California Civil Code.

We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the
Philippines, the validity of the provisions of his will depriving his acknowledged natural child, the
appellant, should be governed by the Philippine Law, the domicile, pursuant to Art. 946 of the Civil
Code of California, not by the internal law of California..

WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower
court with instructions that the partition be made as the Philippine law on succession provides.
Judgment reversed, with costs against appellees.

Padilla, Bautista Angelo, Concepcion, Reyes, Barrera, Paredes, Dizon, Regala and Makalintal, JJ.,
concur.
Bengzon, C.J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 142820 June 20, 2003

WOLFGANG O. ROEHR, petitioner,
vs.
MARIA CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-SALONGA, Presiding
Judge of Makati RTC, Branch 149, respondents.

QUISUMBING, J.:

At the core of the present controversy are issues of (a) grave abuse of discretion allegedly
committed by public respondent and (b) lack of jurisdiction of the regional trial court, in matters that
spring from a divorce decree obtained abroad by petitioner.

In this special civil action for certiorari, petitioner assails (a) the order 1 dated September 30, 1999 of
public respondent Judge Josefina Guevara-Salonga, Presiding Judge of Makati Regional Trial
Court,2 Branch 149, in Civil Case No. 96-1389 for declaration of nullity of marriage, and (b) the
order3 dated March 31, 2000 denying his motion for reconsideration. The assailed orders partially set
aside the trial courts order dismissing Civil Case No. 96-1389, for the purpose of resolving issues
relating to the property settlement of the spouses and the custody of their children.

Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany, married private
respondent Carmen Rodriguez, a Filipina, on December 11, 1980 in Hamburg, Germany. Their
marriage was subsequently ratified on February 14, 1981 in Tayasan, Negros Oriental. 4 Out of their
union were born Carolynne and Alexandra Kristine on November 18, 1981 and October 25, 1987,
respectively.

On August 28, 1996, private respondent filed a petition5 for declaration of nullity of marriage before
the Regional Trial Court (RTC) of Makati City. On February 6, 1997, petitioner filed a motion to
dismiss,6 but it was denied by the trial court in its order7 dated May 28, 1997.

On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in an order 8 dated
August 13, 1997. On September 5, 1997, petitioner filed a petition for certiorari with the Court of
Appeals. On November 27, 1998, the appellate court denied the petition and remanded the case to
the RTC.

Meanwhile, petitioner obtained a decree of divorce from the Court of First Instance of Hamburg-
Blankenese, promulgated on December 16, 1997.

The decree provides in part:

[T]he Court of First Instance, Hamburg-Blankenese, Branch 513, has ruled through Judge
van Buiren of the Court of First Instance on the basis of the oral proceedings held on 4 Nov.
1997:

The marriage of the Parties contracted on 11 December 1980 before the Civil Registrar of
Hamburg-Altona is hereby dissolved.

The parental custody for the children

Carolynne Roehr, born 18 November 1981

Alexandra Kristine Roehr, born on 25 October 1987

 is granted to the father.

The litigation expenses shall be assumed by the Parties.9

In view of said decree, petitioner filed a Second Motion to Dismiss on May 20, 1999 on the ground
that the trial court had no jurisdiction over the subject matter of the action or suit as a decree of
divorce had already been promulgated dissolving the marriage of petitioner and private respondent.

On July 14, 1999, Judge Guevara-Salonga issued an order granting petitioners motion to dismiss.
Private respondent filed a Motion for Partial Reconsideration, with a prayer that the case proceed for
the purpose of determining the issues of custody of children and the distribution of the properties
between petitioner and private respondent.

On August 18, 1999, an Opposition to the Motion for Partial Reconsideration was filed by the
petitioner on the ground that there is nothing to be done anymore in the instant case as the marital
tie between petitioner Wolfgang Roehr and respondent Ma. Carmen D. Rodriguez had already been
severed by the decree of divorce promulgated by the Court of First Instance of Hamburg, Germany
on December 16, 1997 and in view of the fact that said decree of divorce had already been
recognized by the RTC in its order of July 14, 1999, through the implementation of the mandate of
Article 26 of the Family Code,10 endowing the petitioner with the capacity to remarry under the
Philippine law.

On September 30, 1999, respondent judge issued the assailed order partially setting aside her order
dated July 14, 1999 for the purpose of tackling the issues of property relations of the spouses as well
as support and custody of their children. The pertinent portion of said order provides:

Acting on the Motion for Partial Reconsideration of the Order dated July 14, 1999 filed by
petitioner thru counsel which was opposed by respondent and considering that the second
paragraph of Article 26 of the Family Code was included as an amendment thru Executive
Order 227, to avoid the absurd situation of a Filipino as being still married to his or her alien
spouse though the latter is no longer married to the Filipino spouse because he/she had
obtained a divorce abroad which is recognized by his/her national law, and considering
further the effects of the termination of the marriage under Article 43 in relation to Article 50
and 52 of the same Code, which include the dissolution of the property relations of the
spouses, and the support and custody of their children, the Order dismissing this case is
partially set aside with respect to these matters which may be ventilated in this Court.

SO ORDERED.11 (Emphasis supplied.)

Petitioner filed a timely motion for reconsideration on October 19, 1999, which was denied by
respondent judge in an order dated March 31, 2000. 12

Petitioner ascribes lack of jurisdiction of the trial court and grave abuse of discretion on the part of
respondent judge. He cites as grounds for his petition the following:

1. Partially setting aside the order dated July 14, 1999 dismissing the instant case is not
allowed by 1997 Rules of Civil Procedure.13

2. Respondent Maria Carmen Rodriguez by her motion for Partial Reconsideration had
recognized and admitted the Divorce Decision obtained by her ex-husband in Hamburg,
Germany.14
 3. There is nothing left to be tackled by the Honorable Court as there are no conjugal assets
alleged in the Petition for Annulment of Marriage and in the Divorce petition, and the custody
of the children had already been awarded to Petitioner Wolfgang Roehr. 15

Pertinent in this case before us are the following issues:

1. Whether or not respondent judge gravely abused her discretion in issuing her order dated
September 30, 1999, which partially modified her order dated July 14, 1999; and

2. Whether or not respondent judge gravely abused her discretion when she assumed and
retained jurisdiction over the present case despite the fact that petitioner has already
obtained a divorce decree from a German court.

On the first issue, petitioner asserts that the assailed order of respondent judge is completely
inconsistent with her previous order and is contrary to Section 3, Rule 16, Rules of Civil Procedure,
which provides:

Sec. 3. Resolution of motion - After the hearing, the court may dismiss the action or claim,
deny the motion, or order the amendment of the pleading.

The court shall not defer the resolution of the motion for the reason that the ground relied
upon is not indubitable.

In every case, the resolution shall state clearly and distinctly the reasons therefor. (Emphasis
supplied.)

Petitioner avers that a courts action on a motion is limited to dismissing the action or claim, denying
the motion, or ordering the amendment of the pleading.

Private respondent, on her part, argues that the RTC can validly reconsider its order dated July 14,
1999 because it had not yet attained finality, given the timely filing of respondents motion for
reconsideration.

Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of the 1997 Rules of Civil
Procedure, which provides:

Sec. 3. Action upon motion for new trial or reconsideration.The trial court may set aside
the judgment or final order and grant a new trial, upon such terms as may be just, or may
deny the motion. If the court finds that excessive damages have been awarded or that the
judgment or final order is contrary to the evidence or law, it may amend such judgment or
final order accordingly.

Sec. 7. Partial new trial or reconsideration.If the grounds for a motion under this Rule
appear to the court to affect the issues as to only a part, or less than all of the matters in
controversy, or only one, or less than all, of the parties to it, the court may order a new trial
or grant reconsideration as to such issues if severable without interfering with the judgment
or final order upon the rest. (Emphasis supplied.)

It is clear from the foregoing rules that a judge can order a partial reconsideration of a case that has
not yet attained finality. Considering that private respondent filed a motion for reconsideration within
the reglementary period, the trial court's decision of July 14, 1999 can still be modified. Moreover,
in Saado v. Court of Appeals,16we held that the court could modify or alter a judgment even after the
same has become executory whenever circumstances transpire rendering its decision unjust and
inequitable, as where certain facts and circumstances justifying or requiring such modification or
alteration transpired after the judgment has become final and executory 17 and when it becomes
imperative in the higher interest of justice or when supervening events warrant it. 18 In our view, there
are even more compelling reasons to do so when, as in this case, judgment has not yet attained
finality.

Anent the second issue, petitioner claims that respondent judge committed grave abuse of discretion
when she partially set aside her order dated July 14, 1999, despite the fact that petitioner has
already obtained a divorce decree from the Court of First Instance of Hamburg, Germany.

In Garcia v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente v. Court of Appeals,21 we consistently
held that a divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such
decree is valid according to the national law of the foreigner. Relevant to the present case is Pilapil
v. Ibay-Somera,22 where this Court specifically recognized the validity of a divorce obtained by a
German citizen in his country, the Federal Republic of Germany. We held in Pilapil that a foreign
divorce and its legal effects may be recognized in the Philippines insofar as respondent is concerned
in view of the nationality principle in our civil law on the status of persons.

In this case, the divorce decree issued by the German court dated December 16, 1997 has not been
challenged by either of the parties. In fact, save for the issue of parental custody, even the trial court
recognized said decree to be valid and binding, thereby endowing private respondent the capacity to
remarry. Thus, the present controversy mainly relates to the award of the custody of their two
children, Carolynne and Alexandra Kristine, to petitioner.

As a general rule, divorce decrees obtained by foreigners in other countries are recognizable in our
jurisdiction, but the legal effects thereof, e.g. on custody, care and support of the children, must still
be determined by our courts.23 Before our courts can give the effect of res judicata to a foreign
judgment, such as the award of custody to petitioner by the German court, it must be shown that the
parties opposed to the judgment had been given ample opportunity to do so on grounds allowed
under Rule 39, Section 50 of the Rules of Court (now Rule 39, Section 48, 1997 Rules of Civil
Procedure), to wit:

SEC. 50. Effect of foreign judgments. - The effect of a judgment of a tribunal of a foreign
country, having jurisdiction to pronounce the judgment is as follows:

(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to
the thing;

(b) In case of a judgment against a person, the judgment is presumptive evidence of a right
as between the parties and their successors in interest by a subsequent title; but the
judgment may be repelled by evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.

It is essential that there should be an opportunity to challenge the foreign judgment, in order for the
court in this jurisdiction to properly determine its efficacy. In this jurisdiction, our Rules of Court
clearly provide that with respect to actions in personam, as distinguished from actions in rem, a
foreign judgment merely constitutes prima facieevidence of the justness of the claim of a party and,
as such, is subject to proof to the contrary.24
In the present case, it cannot be said that private respondent was given the opportunity to challenge
the judgment of the German court so that there is basis for declaring that judgment as res
judicata with regard to the rights of petitioner to have parental custody of their two children. The
proceedings in the German court were summary. As to what was the extent of private respondents
participation in the proceedings in the German court, the records remain unclear. The divorce decree
itself states that neither has she commented on the proceedings 25 nor has she given her opinion to
the Social Services Office.26 Unlike petitioner who was represented by two lawyers, private
respondent had no counsel to assist her in said proceedings.27 More importantly, the divorce
judgment was issued to petitioner by virtue of the German Civil Code provision to the effect that
when a couple lived separately for three years, the marriage is deemed irrefutably dissolved. The
decree did not touch on the issue as to who the offending spouse was. Absent any finding that
private respondent is unfit to obtain custody of the children, the trial court was correct in setting the
issue for hearing to determine the issue of parental custody, care, support and education mindful of
the best interests of the children. This is in consonance with the provision in the Child and Youth
Welfare Code that the childs welfare is always the paramount consideration in all questions
concerning his care and custody. 28

On the matter of property relations, petitioner asserts that public respondent exceeded the bounds of
her jurisdiction when she claimed cognizance of the issue concerning property relations between
petitioner and private respondent. Private respondent herself has admitted in Par. 14 of her petition
for declaration of nullity of marriage dated August 26, 1996 filed with the RTC of Makati, subject of
this case, that: "[p]etitioner and respondent have not acquired any conjugal or community property
nor have they incurred any debts during their marriage." 29Herein petitioner did not contest this
averment. Basic is the rule that a court shall grant relief warranted by the allegations and the
proof.30 Given the factual admission by the parties in their pleadings that there is no property to be
accounted for, respondent judge has no basis to assert jurisdiction in this case to resolve a matter no
longer deemed in controversy.

In sum, we find that respondent judge may proceed to determine the issue regarding the custody of
the two children born of the union between petitioner and private respondent. Private respondent
erred, however, in claiming cognizance to settle the matter of property relations of the parties, which
is not at issue.

WHEREFORE, the orders of the Regional Trial Court of Makati, Branch 149, issued on September
30, 1999 and March 31, 2000 are AFFIRMED with MODIFICATION. We hereby declare that the trial
court has jurisdiction over the issue between the parties as to who has parental custody, including
the care, support and education of the children, namely Carolynne and Alexandra Kristine Roehr. Let
the records of this case be remanded promptly to the trial court for continuation of appropriate
proceedings. No pronouncement as to costs.

SO ORDERED.

Bellosillo, (Chairman), and Callejo, Sr., JJ., concur.

Austria-Martinez, J., on official leave.

You are hereby authorized to accept service of Summons, to file an Answer, appear
on my behalf and do an things necessary and proper to represent me, without further
contesting, subject to the following:

1. That my spouse seeks a divorce on the ground of incompatibility.

 2. That there is no community of property to be adjudicated by the Court.

3. 'I'hat there are no community obligations to be adjudicated by the court.

xxx xxx xxx 4

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. What he is contending
in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to
local law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only
Philippine nationals are covered by the policy against absolute divorces the same being considered
contrary to our concept of public police and morality. However, aliens may obtain divorces abroad, which
may be recognized in the Philippines, provided they are valid according to their national law. 6 In this
case, the divorce in Nevada released private respondent from the marriage from the standards of
American law, under which divorce dissolves the marriage. As stated by the Federal Supreme Court of
the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

The purpose and effect of a decree of divorce from the bond of matrimony by a court
of competent jurisdiction are to change the existing status or domestic relation of
husband and wife, and to free them both from the bond. The marriage tie when thus
severed as to one party, ceases to bind either. A husband without a wife, or a wife
without a husband, is unknown to the law. When the law provides, in the nature of a
penalty. that the guilty party shall not marry again, that party, as well as the other, is
still absolutely freed from the bond of the former marriage.

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. As he is bound by the Decision of his own country's Court, which validly
exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his
own representation before said Court from asserting his right over the alleged conjugal property.

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still
married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the
Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter should not continue to be one of her
heirs with possible rights to conjugal property. She should not be discriminated against in her own
country if the ends of justice are to be served.

WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the
Complaint filed in Civil Case No. 1075-P of his Court.

Without costs.

SO ORDERED.

Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.
 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. 87-52435 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 enteredDISMISSING 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.

Republic of the Philippines

SUPREME COURT
Manila
 EN BANC

G.R. No. L-2935 March 23, 1909

THE GOVERNMENT OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
GEORGE I. FRANK, defendant-appellant.

Bishop and O'Brien for appellant.

Attorney-General Wilfley for appellee.

JOHNSON, J.:

Judgment was rendered in the lower court on the 5th day of September, 1905. The defendant
appealed. On the 12th day of October, 1905, the appellant filed his printed bill of exceptions with the
clerk of the Supreme Court. On the 5th day of December, 1905, the appellant filed his brief with the
clerk of the Supreme Court. On the 19th day of January, 1906, the Attorney-General filed his brief in
said cause. Nothing further was done in said cause until on or about the 30th day of January, 1909,
when the respective parties were requested by this court to prosecute the appeal under the penalty
of having the same dismissed for failure so to do; whereupon the appellant, by petition, had the
caused placed upon the calendar and the same was heard on the 2d day of February, 1909.

The facts from the record appear to be as follows:

First. That on or about the 17th day of April, 1903, in the city of Chicago, in the state of Illinois, in the
United States, the defendant, through a respective of the Insular Government of the Philippine
Islands, entered into a contract for a period of two years with the plaintiff, by which the defendant
was to receive a salary of 1,200 dollars per year as a stenographer in the service of the said plaintiff,
and in addition thereto was to be paid in advance the expenses incurred in traveling from the said
city of Chicago to Manila, and one-half salary during said period of travel.

Second. Said contract contained a provision that in case of a violation of its terms on the part of the
defendant, he should become liable to the plaintiff for the amount expended by the Government by
way of expenses incurred in traveling from Chicago to Manila and one-half salary paid during such
period.

Third. The defendant entered upon the performance of his contract upon the 30th day of April, 1903,
and was paid half-salary from that date until June 4, 1903, the date of his arrival in the Philippine
Islands.

Fourth. That on the 11th day of February, 1904, the defendant left the service of the plaintiff and
refused to make further compliance with the terms of the contract.

Fifth. On the 3d day of December, 1904, the plaintiff commenced an action in the Court of First
Instance of the city of Manila to recover from the defendant the sum of 269.23 dollars, which amount
the plaintiff claimed had been paid to the defendant as expenses incurred in traveling from Chicago
to Manila, and as half salary for the period consumed in travel.

Sixth. It was expressly agreed between the parties to said contract that Laws No. 80 and No. 224
should constitute a part of said contract.
To the complaint of the plaintiff the defendant filed a general denial and a special defense, alleging in
his special defense that the Government of the Philippine Islands had amended Laws No. 80 and
No. 224 and had thereby materially altered the said contract, and also that he was a minor at the
time the contract was entered into and was therefore not responsible under the law.

To the special defense of the defendant the plaintiff filed a demurrer, which demurrer the court
sustained.

Upon the issue thus presented, and after hearing the evidence adduced during the trial of the cause,
the lower court rendered a judgment against the defendant and in favor of the plaintiff for the sum of
265.90 dollars. The lower court found that at the time the defendant quit the service of the plaintiff
there was due him from the said plaintiff the sum of 3.33 dollars, leaving a balance due the plaintiff in
the sum of 265.90 dollars. From this judgment the defendant appealed and made the following
assignments of error:

1. The court erred in sustaining plaintiff's demurrer to defendant's special defenses.

2. The court erred in rendering judgment against the defendant on the facts.

With reference to the above assignments of error, it may be said that the mere fact that the
legislative department of the Government of the Philippine Islands had amended said Acts No. 80
and No. 224 by the Acts No. 643 and No. 1040 did not have the effect of changing the terms of the
contract made between the plaintiff and the defendant. The legislative department of the
Government is expressly prohibited by section 5 of the Act of Congress of 1902 from altering or
changing the terms of the contract. The right which the defendant had acquired by virtue of Acts No.
80 and No. 224 had not been changed in any respect by the fact that said laws had been amended.
These acts, constituting the terms of the contract, still constituted a part of said contract and were
enforceable in favor of the defendant.

The defendant alleged in his special defense that he was a minor and therefore the contract could
not be enforced against him. The record discloses that, at the time the contract was entered into in
the State of Illinois, he was an adult under the laws of that State and had full authority to contract.
The plaintiff [the defendant] claims that, by reason of the fact that, under the laws of the Philippine
Islands at the time the contract was made, male persons in said Islands did not reach their majority
until they had attained the age of 23 years, he was not liable under said contract, contending that the
laws of the Philippine Islands governed. It is not disputed upon the contrary the fact is admitted
that at the time and place of the making of the contract in question the defendant had full capacity to
make the same. No rule is better settled in law than that matters bearing upon the execution,
interpretation and validity of a contract are determined by the law of the place where the contract is
made. (Scudder vs. Union National Bank, 91 U. S., 406.) Matters connected with its performance are
regulated by the law prevailing at the place of performance. Matters respecting a remedy, such as
the bringing of suit, admissibility of evidence, and statutes of limitations, depend upon the law of the
place where the suit is brought. (Idem.)

The defendant's claim that he was an adult when he left Chicago but was a minor when he arrived at
Manila; that he was an adult at the time he made the contract but was a minor at the time the plaintiff
attempted to enforce the contract, more than a year later, is not tenable.

Our conclusions with reference to the first above assignment of error are, therefore:

First. That the amendments to Acts No. 80 and No. 224 in no way affected the terms of the contract
in question; and
Second. The plaintiff [defendant] being fully qualified to enter into the contract at the place and time
the contract was made, he can not plead infancy as a defense at the place where the contract is
being enforced.

We believe that the above conclusions also dispose of the second assignment of error.

For the reasons above stated, the judgment of the lower court is affirmed, with costs.

Arellano, C. J., Torres, Mapa, Carson, and Willard, JJ., concur.