Republic of the Philippines complete publication; and that the publication must be made forthwith in the Official
SUPREME COURT Gazette. 2
Manila
G.R. No. L-63915 December 29, 1986
LORENZO M. TAÑ;ADA, 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, ETC., ET AL., respondents.
RESOLUTION
CRUZ, J.:
Due process was invoked by the petitioners in demanding the disclosure of a number of
presidential decrees which they claimed had not been published as required by law. The
government argued that while publication was necessary as a rule, it was not so when it
was "otherwise provided," as when the decrees themselves declared that they were to
become effective immediately upon their approval. In the decision of this case on April 24,
1985, the Court affirmed the necessity for the publication of some of these decrees,
declaring in the dispositive portion as follows:
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Gazette all unpublished presidential issuances which are of general application,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.
The petitioners are now before us again, this time to move for reconsideration/clarification of
that decision. 1Specifically, they ask the following questions:
1. What is meant by "law of public nature" or "general applicability"?
2. Must a distinction be made between laws of general applicability and laws which are not?
3. What is meant by "publication"?
4. Where is the publication to be made?
5. When is the publication to be made?
Resolving their own doubts, the petitioners suggest that there should be no distinction
between laws of general applicability and those which are not; that publication means
In the Comment 3 required of the then Solicitor General, he claimed first that the motion was
a request for an advisory opinion and should therefore be dismissed, and, on the merits,
that the clause "unless it is otherwise provided" in Article 2 of the Civil Code meant that the
publication required therein was not always imperative; that publication, when necessary,
did not have to be made in the Official Gazette; and that in any case the subject decision
was concurred in only by three justices and consequently not binding. This elicited a
Reply 4 refuting these arguments. Came next the February Revolution and the Court
required the new Solicitor General to file a Rejoinder in view of the supervening events,
under Rule 3, Section 18, of the Rules of Court. Responding, he submitted that issuances
intended only for the internal administration of a government agency or for particular
persons did not have to be 'Published; that publication when necessary must be in full and
in the Official Gazette; and that, however, the decision under reconsideration was not
binding because it was not supported by eight members of this Court. 5
The subject of contention is Article 2 of the Civil Code providing as follows:
ART. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided. This Code shall
take effect one year after such publication.
After a careful study of this provision and of the arguments of the parties, both on the
original petition and on the instant motion, we have come to the conclusion and so hold, that
the clause "unless it is otherwise provided" refers to the date of effectivity and not to the
requirement of publication itself, which cannot in any event be omitted. This clause does not
mean that the legislature may make the law effective immediately upon approval, or on any
other date, without its previous publication.
Publication is indispensable in every case, but the legislature may in its discretion provide
that the usual fifteen-day period shall be shortened or extended. An example, as pointed out
by the present Chief Justice in his separate concurrence in the original decision, 6 is the
Civil Code which did not become effective after fifteen days from its publication in the
Official Gazette but "one year after such publication." The general rule did not apply
because it was "otherwise provided. "
It is not correct to say that under the disputed clause publication may be dispensed with
altogether. The reason. is that such omission would offend due process insofar as it would
deny the public knowledge of the laws that are supposed to govern the legislature could
validly provide that a law e effective immediately upon its approval notwithstanding the lack
of publication (or after an unreasonably short period after publication), it is not unlikely that
persons not aware of it would be prejudiced as a result and they would be so not because of
a failure to comply with but simply because they did not know of its existence, Significantly,
this is not true only of penal laws as is commonly supposed. One can think of many non-
penal measures, like a law on prescription, which must also be communicated to the
persons they may affect before they can begin to operate.
We note at this point the conclusive presumption that every person knows the law, which of
course presupposes that the law has been published if the presumption is to have any legal
justification at all. It is no less important to remember that Section 6 of the Bill of Rights
recognizes "the right of the people to information on matters of public concern," and this
certainly applies to, among others, and indeed especially, the legislative enactments of the
government.
The term "laws" should refer to all laws and not only to those of general application, for
strictly speaking all laws relate to the people in general albeit there are some that do not
apply to them directly. An example is a law granting citizenship to a particular individual, like
a relative of President Marcos who was decreed instant naturalization. It surely cannot be
said that such a law does not affect the public although it unquestionably does not apply
directly to all the people. The subject of such law is a matter of public interest which any
member of the body politic may question in the political forums or, if he is a proper party,
even in the courts of justice. In fact, a law without any bearing on the public would be invalid
as an intrusion of privacy or as class legislation or as an ultra vires act of the legislature. To
be valid, the law must invariably affect the public interest even if it might be directly
applicable only to one individual, or some of the people only, and t to the public as a whole.
We hold therefore that 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 date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative powers whenever the same are validly delegated by
the legislature or, at present, directly conferred by the Constitution. administrative rules and
regulations must a also be published if their purpose is to enforce or implement existing law
pursuant also to a valid delegation.
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.
Accordingly, even the charter of a city must be published notwithstanding that it applies to
only a portion of the national territory and directly affects only the inhabitants of that place.
All presidential decrees must be published, including even, say, those naming a public place
after a favored individual or exempting him from certain prohibitions or requirements. The
circulars issued by the Monetary Board must be published if they are meant not merely to
interpret but to "fill in the details" of the Central Bank Act which that body is supposed to
enforce.
However, no publication is required of the instructions issued by, say, the Minister of Social
Welfare on the case studies to be made in petitions for adoption or the rules laid down by
the head of a government agency on the assignments or workload of his personnel or the
wearing of office uniforms. Parenthetically, municipal ordinances are not covered by this
rule but by the Local Government Code.
We agree that publication must be in full or it is no publication at all since its purpose is to
inform the public of the contents of the laws. As correctly pointed out by the petitioners, the
mere mention of the number of the presidential decree, the title of such decree, its
whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity, and in a mere
supplement of the Official Gazette cannot satisfy the publication requirement. This is not
even substantial compliance. This was the manner, incidentally, in which the General
Appropriations Act for FY 1975, a presidential decree undeniably of general applicability and
interest, was "published" by the Marcos administration. 7 The evident purpose was to
withhold rather than disclose information on this vital law.
Coming now to the original decision, it is true that only four justices were categorically for
publication in the Official Gazette 8 and that six others felt that publication could be made
elsewhere as long as the people were sufficiently informed. 9 One reserved his vote 10 and
another merely acknowledged the need for due publication without indicating where it
should be made. 11 It is therefore necessary for the present membership of this Court to
arrive at a clear consensus on this matter and to lay down a binding decision supported by
the necessary vote.
There is much to be said of the view that the publication need not be made in the Official
Gazette, considering its erratic releases and limited readership. Undoubtedly, newspapers
of general circulation could better perform the function of communicating, the laws to the
people as such periodicals are more easily available, have a wider readership, and come
out regularly. The trouble, though, is that this kind of publication is not the one required or
authorized by existing law. As far as we know, no amendment has been made of Article 2 of
the Civil Code. The Solicitor General has not pointed to such a law, and we have no
information that it exists. If it does, it obviously has not yet been published.
At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or
modify it if we find it impractical. That is not our function. That function belongs to the
legislature. Our task is merely to interpret and apply the law as conceived and approved by
the political departments of the government in accordance with the prescribed procedure.
Consequently, we have no choice but to pronounce that under Article 2 of the Civil Code,
the publication of laws must be made in the Official Gazett and not elsewhere, as a
requirement for their effectivity after fifteen days from such publication or after a different
period provided by the legislature.
We also hold that the publication must be made forthwith or at least as soon as possible, to
give effect to the law pursuant to the said Article 2. There is that possibility, of course,
although not suggested by the parties that a law could be rendered unenforceable by a
mere refusal of the executive, for whatever reason, to cause its publication as required. This
is a matter, however, that we do not need to examine at this time.
Finally, the claim of the former Solicitor General that the instant motion is a request for an
advisory opinion is untenable, to say the least, and deserves no further comment.
The days of the secret laws and the unpublished decrees are over. This is once again an
open society, with all the acts of the government subject to public scrutiny and available
always to public cognizance. This has to be so if our country is to remain democratic, with
sovereignty residing in the people and all government authority emanating from them.
Although they have delegated the power of legislation, they retain the authority to review the
work of their delegates and to ratify or reject it according to their lights, through their
freedom of expression and their right of suffrage. This they cannot do if the acts of the
legislature are concealed.
Laws must come out in the open in the clear light of the sun instead of skulking in the
shadows with their dark, deep secrets. Mysterious pronouncements and rumored rules
cannot be recognized as binding unless their existence and contents are confirmed by a
valid publication intended to make full disclosure and give proper notice to the people. The
furtive law is like a scabbarded saber that cannot feint parry or cut unless the naked blade is
drawn.
WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon
their approval, or as soon thereafter as possible, be published in full in the Official Gazette,
to become effective only after fifteen days from their publication, or on another date
specified by the legislature, in accordance with Article 2 of the Civil Code.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and
Paras, JJ., concur.
G.R. No. L-63915 April 24, 1985
LORENZO M. TAÑADA, 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, Malacañang 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.
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 Pambansa—
and for the diligent ones, ready access to the legislative records—no 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.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.
G.R. No. 110318 August 28, 1996
COLUMBIA PICTURES, INC., ORION PICTURES CORPORATION, PARAMOUNT
PICTURES CORPORATION, TWENTIETH CENTURY FOX FILM CORPORATION,
UNITED ARTISTS CORPORATION, UNIVERSAL CITY STUDIOS, INC., THE WALT
DISNEY COMPANY, and WARNER BROTHERS, INC., petitioners,
vs.
COURT OF APPEALS, SUNSHINE HOME VIDEO, INC. and DANILO A.
PELINDARIO, respondents.
REGALADO, J.:p
Before us is a petition for review on certiorari of the decision of the Court of
Appeals1 promulgated on July 22, 1992 and its resolution2 of May 10, 1993
denying petitioners' motion for reconsideration, both of which sustained the
order3 of the Regional Trial Court, Branch 133, Makati, Metro Manila, dated
November 22, 1988 for the quashal of Search Warrant No. 87-053 earlier issued
per its own order4 on September 5, 1988 for violation of Section 56 of Presidential
Decree No. 49, as amended, otherwise known as the "Decree on the Protection of
Intellectual Property."
The material facts found by respondent appellate court are as follows:
Complainants thru counsel lodged a formal complaint with the National
Bureau of Investigation for violation of PD No. 49, as amended, and
sought its assistance in their anti-film piracy drive. Agents of the NBI and
private researchers made discreet surveillance on various video
establishments in Metro Manila including Sunshine Home Video Inc.
(Sunshine for brevity), owned and operated by Danilo A. Pelindario with
address at No. 6 Mayfair Center, Magallanes, Makati, Metro Manila.
On November 14, 1987, NBI Senior Agent Lauro C. Reyes applied for a
search warrant with the court a quo against Sunshine seeking the seizure,
among others, of pirated video tapes of copyrighted films all of which
were enumerated in a list attached to the application; and, television sets,
video cassettes and/or laser disc recordings equipment and other
machines and paraphernalia used or intended to be used in the unlawful
exhibition, showing, reproduction, sale, lease or disposition of videograms
tapes in the premises above described. In the hearing of the application,
NBI Senior Agent Lauro C. Reyes, upon questions by the court a quo,
reiterated in substance his averments in his affidavit. His testimony was
corroborated by another witness, Mr. Rene C. Baltazar. Atty. Rico V.
Domingo's deposition was also taken. On the basis of the affidavits and
depositions of NBI Senior Agent Lauro C. Reyes, Rene C. Baltazar and
Atty. Rico V. Domingo, Search Warrant No. 87-053 for violation of Section
56 of PD No. 49, as amended, was issued by the court a quo.
The search warrant was served at about 1:45 p.m. on December 14, 1987
to Sunshine and/or their representatives. In the course of the search of
the premises indicated in the search warrant, the NBI Agents found and
seized various video tapes of duly copyrighted motion pictures/films
owned or exclusively distributed by private complainants, and machines,
equipment, television sets, paraphernalia, materials, accessories all of
which were included in the receipt for properties accomplished by the
raiding team. Copy of the receipt was furnished and/or tendered to Mr.
Danilo A. Pelindario, registered owner-proprietor of Sunshine Home
Video.
On December 16, 1987, a "Return of Search Warrant" was filed with the
Court.
A "Motion To Lift the Order of Search Warrant" was filed but was later
denied for lack of merit (p. 280, Records).
A Motion for reconsideration of the Order of denial was filed. The court a
quo granted the said motion for reconsideration and justified it in this
manner:
It is undisputed that the master tapes of the copyrighted
films from which the pirated films were allegedly copies
(sic), were never presented in the proceedings for the
issuance of the search warrants in question. The orders
of the Court granting the search warrants and denying
the urgent motion to lift order of search warrants were,
therefore, issued in error. Consequently, they must be
set aside. (p. 13, Appellant's Brief)5
Petitioners thereafter appealed the order of the trial court granting private
respondents' motion for reconsideration, thus lifting the search warrant which it had
theretofore issued, to the Court of Appeals. As stated at the outset, said appeal
was dismissed and the motion for reconsideration thereof was denied. Hence, this
petition was brought to this Court particularly challenging the validity of respondent
court's retroactive application of the ruling in 20th Century Fox Film Corporation
vs. Court of Appeals, et al.,6 in dismissing petitioners' appeal and upholding the
quashal of the search warrant by the trial court.
I
Inceptively, we shall settle the procedural considerations on the matter of and the
challenge to petitioners' legal standing in our courts, they being foreign
corporations not licensed to do business in the Philippines.
Private respondents aver that being foreign corporations, petitioners should have
such license to be able to maintain an action in Philippine courts. In so challenging
petitioners' personality to sue, private respondents point to the fact that petitioners
are the copyright owners or owners of exclusive rights of distribution in the
Philippines of copyrighted motion pictures or films, and also to the appointment of
Atty. Rico V. Domingo as their attorney-in-fact, as being constitutive of "doing
business in the Philippines" under Section 1 (f)(1) and (2), Rule 1 of the Rules of
the Board of Investments. As foreign corporations doing business in the
Philippines, Section 133 of Batas Pambansa Blg. 68, or the Corporation Code of
the Philippines, denies them the right to maintain a suit in Philippine courts in the
absence of a license to do business. Consequently, they have no right to ask for
the issuance of a search warrant.7
In refutation, petitioners flatly deny that they are doing business in the
Philippines,8 and contend that private respondents have not adduced evidence to
prove that petitioners are doing such business here, as would require them to be
licensed by the Securities and Exchange Commission, other than averments in the
quoted portions of petitioners' "Opposition to Urgent Motion to Lift Order of Search
Warrant" dated April 28, 1988 and Atty. Rico V. Domingo's affidavit of December
14, 1987. Moreover, an exclusive right to distribute a product or the ownership of
such exclusive right does not conclusively prove the act of doing business nor
establish the presumption of doing business.9
The Corporation Code provides:
Sec. 133. Doing business without a license. — No foreign corporation
transacting business in the Philippines without a license, or its successors
or assigns, shall be permitted to maintain or intervene in any action, suit
or proceeding in any court or administrative agency of the Philippines; but
such corporation may be sued or proceeded against before Philippine
courts or administrative tribunals on any valid cause of action recognized
under Philippine laws.
The obtainment of a license prescribed by Section 125 of the Corporation Code is
not a condition precedent to the maintenance of any kind of action in Philippine
courts by a foreign corporation. However, under the aforequoted provision, no
foreign corporation shall be permitted to transact business in the Philippines, as
this phrase is understood under the Corporation Code, unless it shall have the
license required by law, and until it complies with the law intransacting business
here, it shall not be permitted to maintain any suit in local courts.10 As thus
interpreted, any foreign corporation not doing business in the Philippines may
maintain an action in our courts upon any cause of action, provided that the subject
matter and the defendant are within the jurisdiction of the court. It is not the
absence of the prescribed license but "doing business" in the Philippines without
such license which debars the foreign corporation from access to our courts. In
other words, although a foreign corporation is without license to transact business
in the Philippines, it does not follow that it has no capacity to bring an action. Such
license is not necessary if it is not engaged in business in the Philippines.11
Statutory provisions in many jurisdictions are determinative of what constitutes
"doing business" or "transacting business" within that forum, in which case said
provisions are controlling there. In others where no such definition or qualification
is laid down regarding acts or transactions failing within its purview, the question
rests primarily on facts and intent. It is thus held that all the combined acts of a
foreign corporation in the State must be considered, and every circumstance is
material which indicates a purpose on the part of the corporation to engage in
some part of its regular business in the State.12
No general rule or governing principles can be laid down as to what constitutes
"doing" or "engaging in" or "transacting" business. Each case must be judged in
the light of its own peculiar environmental circumstances. 13 The true tests,
however, seem to be whether the foreign corporation is continuing the body or
substance of the business or enterprise for which it was organized or whether it
has substantially retired from it and turned it over to another. 14
As a general proposition upon which many authorities agree in principle, subject to
such modifications as may be necessary in view of the particular issue or of the
terms of the statute involved, it is recognized that a foreign corporation is "doing,"
"transacting," "engaging in," or "carrying on" business in the State when, and
ordinarily only when, it has entered the State by its agents and is there engaged in
carrying on and transacting through them some substantial part of its ordinary or
customary business, usually continuous in the sense that it may be distinguished
from merely casual, sporadic, or occasional transactions and isolated acts.15
The Corporation Code does not itself define or categorize what acts constitute
doing or transacting business in the Philippines. Jurisprudence has, however, held
that the term implies a continuity of commercial dealings and arrangements, and
contemplates, to that extent, the performance of acts or works or the exercise of
some of the functions normally incident to or in progressive prosecution of the
purpose and subject of its organization.16
This traditional case law definition has evolved into a statutory definition, having
been adopted with some qualifications in various pieces of legislation in our
jurisdiction.
For instance, Republic Act No. 5455 17 provides:
Sec. 1. Definitions and scope of this Act. — (1) . . . ; and the phrase
"doing business" shall include soliciting orders, purchases, service
contracts, opening offices, whether called "liaison" offices or branches;
appointing representatives or distributors who are domiciled in the
Philippines or who in any calendar year stay in the Philippines for a period
or periods totalling one hundred eighty days or more; participating in the
management, supervision or control of any domestic business firm, entity
or corporation in the Philippines; and any other act or acts that imply a
continuity of commercial dealings or arrangements, and contemplate to
that extent the performance of acts or works, or the exercise of some of
the functions normally incident to, and in progressive prosecution of,
commercial gain or of the purpose and object of the business
organization.
Presidential Decree No. 1789,18 in Article 65 thereof, defines "doing business" to
include soliciting orders, purchases, service contracts, opening offices, whether
called "liaison" offices or branches; appointing representatives or distributors who
are domiciled in the Philippines or who in any calendar year stay in the Philippines
for a period or periods totalling one hundred eighty days or more; participating in
the management, supervision or control of any domestic business firm, entity or
corporation in the Philippines, and any other act or acts that imply a continuity of
commercial dealings or arrangements and contemplate to that extent the
performance of acts or works, or the exercise of some of the functions normally
incident to, and in progressive prosecution of, commercial gain or of the purpose
and object of the business organization.
The implementing rules and regulations of said presidential decree conclude the
enumeration of acts constituting "doing business" with a catch-all definition, thus:
Sec. 1(g). "Doing Business" shall be any act or combination of acts
enumerated in Article 65 of the Code. In particular "doing business"
includes:
xxx xxx xxx
(10) Any other act or acts which imply a continuity of commercial dealings
or arrangements, and contemplate to that extent the performance of acts
or works, or the exercise of some of the functions normally incident to, or
in the progressive prosecution of, commercial gain or of the purpose and
object of the business organization.
Finally, Republic Act No. 704219 embodies such concept in this wise:
Sec. 3. Definitions. — As used in this Act:
xxx xxx xxx
(d) the phrase "doing business shall include soliciting orders, service
contracts, opening offices, whether called "liaison" offices or branches;
appointing representatives or distributors domiciled in the Philippines or
who in any calendar year stay in the country for a period or periods
totalling one hundred eight(y) (180) days or more; participating in the
management, supervision or control of any domestic business, firm, entity
or corporation in the Philippines; and any other act or acts that imply a
continuity of commercial dealings or arrangements, and contemplate to
that extent the performance of acts or works, or the exercise of some of
the functions normally incident to, and in progressive prosecution of,
commercial gain or of the purpose and object of the business
organization: Provided, however, That the phrase "doing business" shall
not be deemed to include mere investment as a shareholder by a foreign
entity in domestic corporations duly registered to do business, and/or the
exercise of rights as such investor; nor having a nominee director or
officer to represent its interests in such corporation; nor appointing a
representative or distributor domiciled in the Philippines which transacts
business in its own name and for its own account.
Based on Article 133 of the Corporation Code and gauged by such statutory
standards, petitioners are not barred from maintaining the present action. There is
no showing that, under our statutory or case law, petitioners are doing, transacting,
engaging in or carrying on business in the Philippines as would require obtention of
a license before they can seek redress from our courts. No evidence has been
offered to show that petitioners have performed any of the enumerated acts or any
other specific act indicative of an intention to conduct or transact business in the
Philippines.
Accordingly, the certification issued by the Securities and Exchange
Commission20 stating that its records do not show the registration of petitioner film
companies either as corporations or partnerships or that they have been licensed
to transact business in the Philippines, while undeniably true, is of no consequence
to petitioners' right to bring action in the Philippines. Verily, no record of such
registration by petitioners can be expected to be found for, as aforestated, said
foreign film corporations do not transact or do business in the Philippines and,
therefore, do not need to be licensed in order to take recourse to our courts.
Although Section 1(g) of the Implementing Rules and Regulations of the Omnibus
Investments Code lists, among others —
(1) Soliciting orders, purchases (sales) or service contracts. Concrete and
specific solicitations by a foreign firm, or by an agent of such foreign firm,
not acting independently of the foreign firm amounting to negotiations or
fixing of the terms and conditions of sales or service contracts, regardless
of where the contracts are actually reduced to writing, shall constitute
doing business even if the enterprise has no office or fixed place of
business in the Philippines. The arrangements agreed upon as to
manner, time and terms of delivery of the goods or the transfer of title
thereto is immaterial. A foreign firm which does business through the
middlemen acting in their own names, such as indentors, commercial
brokers or commission merchants, shall not be deemed doing business in
the Philippines. But such indentors, commercial brokers or commission
merchants shall be the ones deemed to be doing business in the
Philippines.
(2) Appointing a representative or distributor who is domiciled in the
Philippines, unless said representative or distributor has an independent
status, i.e., it transacts business in its name and for its own account, and
not in the name or for the account of a principal. Thus, where a foreign
firm is represented in the Philippines by a person or local company which
does not act in its name but in the name of the foreign firm, the latter is
doing business in the Philippines.
as acts constitutive of "doing business," the fact that petitioners are admittedly
copyright owners or owners of exclusive distribution rights in the Philippines of
motion pictures or films does not convert such ownership into an indicium of doing
business which would require them to obtain a license before they can sue upon a
cause of action in local courts.
Neither is the appointment of Atty. Rico V. Domingo as attorney-in-fact of
petitioners, with express authority pursuant to a special power of attorney, inter
alia —
To lay criminal complaints with the appropriate authorities and to provide
evidence in support of both civil and criminal proceedings against any
person or persons involved in the criminal infringement of copyright or
concerning the unauthorized importation, duplication, exhibition or
distribution of any cinematographic work(s) — films or video cassettes —
of which . . . is the owner of copyright or the owner of exclusive rights of
distribution in the Philippines pursuant to any agreement(s) between . . .
and the respective owners of copyright in such cinematographic work(s),
to initiate and prosecute on behalf of . . . criminal or civil actions in the
Philippines against any person or persons unlawfully distributing,
exhibiting, selling or offering for sale any films or video cassettes of which
. . . is the owner of copyright or the owner of exclusive rights of
distribution in the Philippines pursuant to any agreement(s) between . . .
and the respective owners of copyright in such works.21
tantamount to doing business in the Philippines. We fail to see how exercising
one's legal and property rights and taking steps for the vigilant protection of said
rights, particularly the appointment of an attorney-in-fact, can be deemed by and of
themselves to be doing business here.
As a general rule, a foreign corporation will not be regarded as doing business in
the State simply because it enters into contracts with residents of the State, where
such contracts are consummated outside the State.22In fact, a view is taken that a
foreign corporation is not doing business in the State merely because sales of its
product are made there or other business furthering its interests is transacted there
by an alleged agent, whether a corporation or a natural person, where such
activities are not under the direction and control of the foreign corporation but are
engaged in by the alleged agent as an independent business. 23
It is generally held that sales made to customers in the State by an independent
dealer who has purchased and obtained title from the corporation to the products
sold are not a doing of business by the corporation.24Likewise, a foreign
corporation which sells its products to persons styled "distributing agents" in the
State, for distribution by them, is not doing business in the State so as to render it
subject to service of process therein, where the contract with these purchasers is
that they shall buy exclusively from the foreign corporation such goods as it
manufactures and shall sell them at trade prices established by it.25
It has moreover been held that the act of a foreign corporation in engaging an
attorney to represent it in a Federal court sitting in a particular State is not doing
business within the scope of the minimum contact test. 26With much more reason
should this doctrine apply to the mere retainer of Atty. Domingo for legal protection
against contingent acts of intellectual piracy.
In accordance with the rule that "doing business" imports only acts in furtherance
of the purposes for which a foreign corporation was organized, it is held that the
mere institution and prosecution or defense of a suit, particularly if the transaction
which is the basis of the suit took place out of the State, do not amount to the
doing of business in the State. The institution of a suit or the removal thereof is
neither the making of a contract nor the doing of business within a constitutional
provision placing foreign corporations licensed to do business in the State under
the same regulations, limitations and liabilities with respect to such acts as
domestic corporations. Merely engaging in litigation has been considered as not a
sufficient minimum contact to warrant the exercise of jurisdiction over a foreign
corporation.27
As a consideration aside, we have perforce to comment on private respondents'
basis for arguing that petitioners are barred from maintaining suit in the Philippines.
For allegedly being foreign corporations doing business in the Philippines without a
license, private respondents repeatedly maintain in all their pleadings that
petitioners have thereby no legal personality to bring an action before Philippine
Courts.28
Among the grounds for a motion to dismiss under the Rules of Court
are lack of legal capacity to sue29 and that the complaint states no cause of
action. 30 Lack of legal capacity to sue means that the plaintiff is not in the exercise
of his civil rights, or does not have the necessary qualification to appear in the
case, or does not have the character or representation he claims. 31 On the other
hand, a case is dismissible for lack of personality to sue upon proof that the plaintiff
is not the real party in interest, hence grounded on failure to state a cause of
action.32 The term "lack of capacity to sue" should not be confused with the term
"lack of personality to sue." While the former refers to a plaintiff's general disability
to sue, such as on account of minority, insanity, incompetence, lack of juridical
personality or any other general disqualifications of a party, the latter refers to the
fact that the plaintiff is not the real party in interest. Correspondingly, the first can
be a ground for a motion to dismiss based on the ground of lack of legal capacity
to sue;33 whereas the second can be used as a ground for a motion to dismiss
based on the fact that the complaint, on the face thereof, evidently states no cause
of action.34
Applying the above discussion to the instant petition, the ground available for
barring recourse to our courts by an unlicensed foreign corporation doing or
transacting business in the Philippines should properly be "lack of capacity to sue,"
not "lack of personality to sue." Certainly, a corporation whose legal rights have
been violated is undeniably such, if not the only, real party in interest to bring suit
thereon although, for failure to comply with the licensing requirement, it is not
capacitated to maintain any suit before our courts.
Lastly, on this point, we reiterate this Court's rejection of the common procedural
tactics of erring local companies which, when sued by unlicensed foreign
corporations not engaged in business in the Philippines, invoke the latter's
supposed lack of capacity to sue. The doctrine of lack of capacity to sue based on
failure to first acquire a local license is based on considerations of public policy. It
was never intended to favor nor insulate from suit unscrupulous establishments or
nationals in case of breach of valid obligations or violation of legal rights of
unsuspecting foreign firms or entities simply because they are not licensed to do
business in the country.35
II
We now proceed to the main issue of the retroactive application to the present
controversy of the ruling in 20th Century Fox Film Corporation vs. Court of
Appeals, et al., promulgated on August 19, 1988,36 that for the determination of
probable cause to support the issuance of a search warrant in copyright
infringement cases involving videograms, the production of the master tape for
comparison with the allegedly pirate copies is necessary.
Petitioners assert that the issuance of a search warrant is addressed to the
discretion of the court subject to the determination of probable cause in
accordance with the procedure prescribed therefore under Sections 3 and 4 of
Rule 126. As of the time of the application for the search warrant in question, the
controlling criterion for the finding of probable cause was that enunciated in Burgos
vs. Chief of Staff 3 7 stating that:
 Probable cause for a search warrant is defined as such facts and
circumstances which would lead a reasonably discreet and prudent man
to believe that an offense has been committed and that the objects sought
in connection with the offense are in the place sought to be searched.
According to petitioners, after complying with what the law then required, the lower
court determined that there was probable cause for the issuance of a search
warrant, and which determination in fact led to the issuance and service on
December 14, 1987 of Search Warrant No. 87-053. It is further argued that any
search warrant so issued in accordance with all applicable legal requirements is
valid, for the lower court could not possibly have been expected to apply, as the
basis for a finding of probable cause for the issuance of a search warrant in
copyright infringement cases involving videograms, a pronouncement which was
not existent at the time of such determination, on December 14, 1987, that is, the
doctrine in the 20th Century Fox case that was promulgated only on August 19,
1988, or over eight months later.
Private respondents predictably argue in support of the ruling of the Court of
Appeals sustaining the quashal of the search warrant by the lower court on the
strength of that 20th Century Fox ruling which, they claim, goes into the very
essence of probable cause. At the time of the issuance of the search warrant
involved here, although the 20th Century Fox case had not yet been decided,
Section 2, Article III of the Constitution and Section 3, Rule 126 of the 1985 Rules
on Criminal Procedure embodied the prevailing and governing law on the matter.
The ruling in 20th Century Fox was merely an application of the law on probable
cause. Hence, they posit that there was no law that was retrospectively applied,
since the law had been there all along. To refrain from applying the 20th Century
Fox ruling, which had supervened as a doctrine promulgated at the time of the
resolution of private respondents' motion for reconsideration seeking the quashal
of the search warrant for failure of the trial court to require presentation of the
master tapes prior to the issuance of the search warrant, would have constituted
grave abuse of discretion.38
Respondent court upheld the retroactive application of the 20th Century Fox ruling
by the trial court in resolving petitioners' motion for reconsideration in favor of the
quashal of the search warrant, on this renovated thesis:
And whether this doctrine should apply retroactively, it must be noted that
in the 20th Century Fox case, the lower court quashed the earlier search
warrant it issued. On certiorari, the Supreme Court affirmed the quashal
on the ground among others that the master tapes or copyrighted films
were not presented for comparison with the purchased evidence of the
video tapes to determine whether the latter is an unauthorized
reproduction of the former.
If the lower court in the Century Fox case did not quash the warrant, it is
Our view that the Supreme Court would have invalidated the warrant just
the same considering the very strict requirement set by the Supreme
Court for the determination of "probable cause" in copyright infringement
cases as enunciated in this 20th Century Fox case. This is so because,
as was stated by the Supreme Court in the said case, the master tapes
and the pirated tapes must be presented for comparison to satisfy the
requirement of "probable cause." So it goes back to the very existence of
probable
cause. . . .39
Mindful as we are of the ramifications of the doctrine of stare decisis and the
rudiments of fair play, it is our considered view that the 20th Century Fox ruling
cannot be retroactively applied to the instant case to justify the quashal of Search
Warrant No. 87-053. Herein petitioners' consistent position that the order of the
lower court of September 5, 1988 denying therein defendants' motion to lift the
order of search warrant was properly issued, there having been satisfactory
compliance with the then prevailing standards under the law for determination of
probable cause, is indeed well taken. The lower court could not possibly have
expected more evidence from petitioners in their application for a search warrant
other than what the law and jurisprudence, then existing and judicially accepted,
required with respect to the finding of probable cause.
Article 4 of the Civil Code provides that "(l)aws shall have no retroactive effect,
unless the contrary is provided. Correlatively, Article 8 of the same Code declares
that "(j)udicial decisions applying the laws or the Constitution shall form part of the
legal system of the Philippines."
Jurisprudence, in our system of government, cannot be considered as an
independent source of law; it cannot create law.40 While it is true that judicial
decisions which apply or interpret the Constitution or the laws are part of the legal
system of the Philippines, still they are not laws. Judicial decisions, though not
laws, are nonetheless evidence of what the laws mean, and it is for this reason that
they are part of the legal system of the Philippines.41 Judicial decisions of the
Supreme Court assume the same authority as the statute
itself.42
Interpreting the aforequoted correlated provisions of the Civil Code and in light of
the above disquisition, this Court emphatically declared in Co vs. Court of Appeals,
et al.43 that the principle of prospectivity applies not only to original or amendatory
statutes and administrative rulings and circulars, but also, and properly so, to
judicial decisions. Our holding in the earlier case of People vs. Jabinal44 echoes
the rationale for this judicial declaration, viz.:
Decisions of this Court, although in themselves not laws, are nevertheless
evidence of what the laws mean, and this is the reason why under Article
8 of the New Civil Code, "Judicial decisions applying or interpreting the
laws or the Constitution shall form part of the legal system." The
interpretation upon a law by this Court constitutes, in a way, a part of the
law as of the date that the law was originally passed, since this Court's
construction merely establishes the contemporaneous legislative intent
 that the law thus construed intends to effectuate. The settled rule
supported by numerous authorities is a restatement of the legal maxim
"legis interpretatio legis vim obtinet" — the interpretation placed upon the
written law by a competent court has the force of law. . . . , but when a
doctrine of this Court is overruled and a different view is adopted, the new
doctrine should be applied prospectively, and should not apply to parties
who had relied on the old doctrine and acted on the faith thereof . . . .
(Emphasis supplied).
This was forcefully reiterated in Spouses Benzonan vs. Court of Appeals, et
al.,45 where the Court expounded:
. . . . But while our decisions form part of the law of the land, they are also
subject to Article 4 of the Civil Code which provides that "laws shall have
no retroactive effect unless the contrary is provided." This is expressed in
the familiar legal maxim lex prospicit, non respicit, the law looks forward
not backward. The rationale against retroactivity is easy to perceive. The
retroactive application of a law usually divests rights that have already
become vested or impairs the obligations of contract and hence, is
unconstitutional (Francisco v. Certeza, 3 SCRA 565 [1961]). The same
consideration underlies our rulings giving only prospective effect to
decisions enunciating new doctrines. . . . .
The reasoning behind Senarillos vs. Hermosisima46 that judicial interpretation of a
statute constitutes part of the law as of the date it was originally passed, since the
Court's construction merely establishes the contemporaneous legislative intent that
the interpreted law carried into effect, is all too familiar. Such judicial doctrine does
not amount to the passage of a new law but consists merely of a construction or
interpretation of a pre-existing one, and that is precisely the situation obtaining in
this case.
It is consequently clear that a judicial interpretation becomes a part of the law as of
the date that law was originally passed, subject only to the qualification that when a
doctrine of this Court is overruled and a different view is adopted, and more so
when there is a reversal thereof, the new doctrine should be applied prospectively
and should not apply to parties who relied on the old doctrine and acted in good
faith.4 7 To hold otherwise would be to deprive the law of its quality of fairness and
justice then, if there is no recognition of what had transpired prior to such
adjudication.48
There is merit in petitioners' impassioned and well-founded argumentation:
The case of 20th Century Fox Film Corporation vs. Court of Appeals, et
al., 164 SCRA 655 (August 19, 1988) (hereinafter 20th Century Fox) was
inexistent in December of 1987 when Search Warrant 87-053 was issued
by the lower court. Hence, it boggles the imagination how the lower court
could be expected to apply the formulation of 20th Century Fox in finding
probable cause when the formulation was yet non-existent.
xxx xxx xxx
In short, the lower court was convinced at that time after conducting
searching examination questions of the applicant and his witnesses that
"an offense had been committed and that the objects sought in
connection with the offense (were) in the place sought to be searched"
(Burgos v. Chief of Staff, et al., 133 SCRA 800). It is indisputable,
therefore, that at the time of the application, or on December 14, 1987,
the lower court did not commit any error nor did it fail to comply with any
legal requirement for the valid issuance of search warrant.
. . . (W)e believe that the lower court should be considered as having
followed the requirements of the law in issuing Search Warrant No. 87-
053. The search warrant is therefore valid and binding. It must be noted
that nowhere is it found in the allegations of the Respondents that the
lower court failed to apply the law as then interpreted in 1987. Hence, we
find it absurd that it is (sic) should be seen otherwise, because it is simply
impossible to have required the lower court to apply a formulation which
will only be defined six months later.
Furthermore, it is unjust and unfair to require compliance with legal and/or
doctrinal requirements which are inexistent at the time they were
supposed to have been complied with.
xxx xxx xxx
. . . If the lower court's reversal will be sustained, what encouragement
can be given to courts and litigants to respect the law and rules if they can
expect with reasonable certainty that upon the passage of a new rule,
their conduct can still be open to question? This certainly breeds
instability in our system of dispensing justice. For Petitioners who took
special effort to redress their grievances and to protect their property
rights by resorting to the remedies provided by the law, it is most unfair
that fealty to the rules and procedures then obtaining would bear but fruits
of
injustice.49
Withal, even the proposition that the prospectivity of judicial decisions imports
application thereof not only to future cases but also to cases still ongoing or not yet
final when the decision was promulgated, should not be countenanced in the jural
sphere on account of its inevitably unsettling repercussions. More to the point, it is
felt that the reasonableness of the added requirement in 20th Century Fox calling
for the production of the master tapes of the copyrighted films for determination of
probable cause in copyright infringement cases needs revisiting and clarification.
It will be recalled that the 20th Century Fox case arose from search warrant
proceedings in anticipation of the filing of a case for the unauthorized sale or
renting out of copyrighted films in videotape format in violation of Presidential
Decree No. 49. It revolved around the meaning of probable cause within the
context of the constitutional provision against illegal searches and seizures, as
applied to copyright infringement cases involving videotapes.
Therein it was ruled that —
The presentation of master tapes of the copyrighted films from which the
pirated films were allegedly copied, was necessary for the validity of
search warrants against those who have in their possession the pirated
films. The petitioner's argument to the effect that the presentation of the
master tapes at the time of application may not be necessary as these
would be merely evidentiary in nature and not determinative of whether or
not a probable cause exists to justify the issuance of the search warrants
is not meritorious. The court cannot presume that duplicate or copied
tapes were necessarily reproduced from master tapes that it owns.
The application for search warrants was directed against video tape
outlets which allegedly were engaged in the unauthorized sale and
renting out of copyrighted films belonging to the petitioner pursuant to
P.D. 49.
The essence of a copyright infringement is the similarity or at least
substantial similarity of the purported pirated works to the copyrighted
work. Hence, the applicant must present to the court the copyrighted films
to compare them with the purchased evidence of the video tapes
allegedly pirated to determine whether the latter is an unauthorized
reproduction of the former. This linkage of the copyrighted films to the
pirated films must be established to satisfy the requirements of probable
cause. Mere allegations as to the existence of the copyrighted films
cannot serve as basis for the issuance of a search warrant.
For a closer and more perspicuous appreciation of the factual antecedents of 20th
Century Fox, the pertinent portions of the decision therein are quoted hereunder, to
wit:
In the instant case, the lower court lifted the three questioned search
warrants against the private respondents on the ground that it acted on
the application for the issuance of the said search warrants and granted it
on the misrepresentations of applicant NBI and its witnesses that
infringement of copyright or a piracy of a particular film have been
committed. Thus the lower court stated in its questioned order dated
January 2, 1986:
According to the movant, all three witnesses during the
proceedings in the application for the three search
warrants testified of their own personal knowledge. Yet,
Atty. Albino Reyes of the NBI stated that the counsel or
representative of the Twentieth Century Fox
Corporation will testify on the video cassettes that were
pirated, so that he did not have personal knowledge of
the alleged piracy. The witness Bacani also said that
the video cassettes were pirated without stating the
manner it was pirated and that it was Atty. Domingo
that has knowledge of that fact.
On the part of Atty. Domingo, he said that the re-taping
of the allegedly pirated tapes was from master tapes
allegedly belonging to the Twentieth Century Fox,
because, according to him it is of his personal
knowledge.
At the hearing of the Motion for Reconsideration, Senior
NBI Agent Atty. Albino Reyes testified that when the
complaint for infringement was brought to the NBI, the
master tapes of the allegedly pirated tapes were shown
to him and he made comparisons of the tapes with
those purchased by their man Bacani. Why the master
tapes or at least the film reels of the allegedly pirated
tapes were not shown to the Court during the
application gives some misgivings as to the truth of that
bare statement of the NBI agent on the witness stand.
Again as the application and search proceedings is a
prelude to the filing of criminal cases under PD 49, the
copyright infringement law, and although what is
required for the issuance thereof is merely the presence
of probable cause, that probable cause must be
satisfactory to the Court, for it is a time-honored precept
that proceedings to put a man to task as an offender
under our laws should be interpreted in strictissimi
juris against the government and liberally in favor of the
alleged offender.
xxx xxx xxx
This doctrine has never been overturned, and as a
matter of fact it had been enshrined in the Bill of Rights
in our 1973 Constitution.
So that lacking in persuasive effect, the allegation that
master tapes were viewed by the NBI and were
compared to the purchased and seized video tapes
from the respondents' establishments, it should be
dismissed as not supported by competent evidence and
for that matter the probable cause hovers in that grey
 debatable twilight zone between black and white
resolvable in favor of respondents herein.
But the glaring fact is that "Cocoon," the first video tape
mentioned in the search warrant, was not even duly
registered or copyrighted in the Philippines. (Annex C of
Opposition p. 152 record.) So, that lacking in the
requisite presentation to the Court of an alleged master
tape for purposes of comparison with the purchased
evidence of the video tapes allegedly pirated and those
seized from respondents, there was no way to
determine whether there really was piracy, or copying
of the film of the complainant Twentieth Century Fox.
xxx xxx xxx
The lower court, therefore, lifted the three (3) questioned search warrants
in the absence of probable cause that the private respondents violated
P.D. 49. As found out by the court, the NBI agents who acted as
witnesses did not have personal knowledge of the subject matter of their
testimony which was the alleged commission of the offense by the private
respondents. Only the petitioner's counsel who was also a witness during
the application for the issuance of the search warrants stated that he had
personal knowledge that the confiscated tapes owned by the private
respondents were pirated tapes taken from master tapes belonging to the
petitioner. However, the lower court did not give much credence to his
testimony in view of the fact that the master tapes of the allegedly pirated
tapes were not shown to the court during the application (Emphasis ours).
The italicized passages readily expose the reason why the trial court therein
required the presentation of the master tapes of the allegedly pirated films in order
to convince itself of the existence of probable cause under the factual milieu
peculiar to that case. In the case at bar, respondent appellate court itself observed:
We feel that the rationale behind the aforequoted doctrine is that the
pirated copies as well as the master tapes, unlike the other types of
personal properties which may be seized, were available for presentation
to the court at the time of the application for a search warrant to
determine the existence of the linkage of the copyrighted films with the
pirated ones. Thus, there is no reason not the present them (Emphasis
supplied ).50
In fine, the supposed pronunciamento in said case regarding the necessity for the
presentation of the master tapes of the copyrighted films for the validity of search
warrants should at most be understood to merely serve as a guidepost in
determining the existence of probable cause in copyright infringement cases where
there is doubt as to the true nexus between the master tape and the pirated
copies. An objective and careful reading of the decision in said case could lead to
no other conclusion than that said directive was hardly intended to be a sweeping
and inflexible requirement in all or similar copyright infringement cases. Judicial
dicta should always be construed within the factual matrix of their parturition,
otherwise a careless interpretation thereof could unfairly fault the writer with the
vice of overstatement and the reader with the fallacy of undue generalization.
In the case at bar, NBI Senior Agent Lauro C. Reyes who filed the application for
search warrant with the lower court following a formal complaint lodged by
petitioners, judging from his affidavit51 and his deposition,52did testify on matters
within his personal knowledge based on said complaint of petitioners as well as his
own investigation and surveillance of the private respondents' video rental shop.
Likewise, Atty. Rico V. Domingo, in his capacity as attorney-in-fact, stated in his
affidavit53 and further expounded in his deposition54 that he personally knew of the
fact that private respondents had never been authorized by his clients to
reproduce, lease and possess for the purpose of selling any of the copyrighted
films.
Both testimonies of Agent Reyes and Atty. Domingo were corroborated by Rene C.
Baltazar, a private researcher retained by Motion Pictures Association of America,
Inc. (MPAA, Inc.), who was likewise presented as a witness during the search
warrant proceedings.55 The records clearly reflect that the testimonies of the
abovenamed witnesses were straightforward and stemmed from matters within
their personal knowledge. They displayed none of the ambivalence and uncertainty
that the witnesses in the 20th Century Fox case exhibited. This categorical
forthrightness in their statements, among others, was what initially and correctly
convinced the trial court to make a finding of the existence of probable cause.
There is no originality in the argument of private respondents against the validity of
the search warrant, obviously borrowed from 20th Century Fox, that petitioners'
witnesses — NBI Agent Lauro C. Reyes, Atty. Rico V. Domingo and Rene C.
Baltazar — did not have personal knowledge of the subject matter of their
respective testimonies and that said witnesses' claim that the video tapes were
pirated, without stating the manner by which these were pirated, is a conclusion of
fact without basis.56 The difference, it must be pointed out, is that the records in the
present case reveal that (1) there is no allegation of misrepresentation, much less
a finding thereof by the lower court, on the part of petitioners' witnesses; (2) there
is no denial on the part of private respondents that the tapes seized were
illegitimate copies of the copyrighted ones not have they shown that they were
given any authority by petitioners to copy, sell, lease, distribute or circulate, or at
least, to offer for sale, lease, distribution or circulation the said video tapes; and (3)
a discreet but extensive surveillance of the suspected area was undertaken by
petitioners' witnesses sufficient to enable them to execute trustworthy affidavits
and depositions regarding matters discovered in the course thereof and of which
they have personal knowledge.
It is evidently incorrect to suggest, as the ruling in 20th Century Fox may appear to
do, that in copyright infringement cases, the presentation of master tapes of the
copyrighted films is always necessary to meet the requirement of probable cause
and that, in the absence thereof, there can be no finding of probable cause for the
issuance of a search warrant. It is true that such master tapes are object evidence,
with the merit that in this class of evidence the ascertainment of the controverted
fact is made through demonstrations involving the direct use of the senses of the
presiding magistrate.57 Such auxiliary procedure, however, does not rule out the
use of testimonial or documentary evidence, depositions, admissions or other
classes of evidence tending to prove the factum probandum,58 especially where
the production in court of object evidence would result in delay, inconvenience or
expenses out of proportion to its evidentiary value. 59
Of course, as a general rule, constitutional and statutory provisions relating to
search warrants prohibit their issuance except on a showing of probable cause,
supported by oath or affirmation. These provisions prevent the issuance of
warrants on loose, vague, or doubtful bases of fact, and emphasize the purpose to
protect against all general searches.60 Indeed, Article III of our Constitution
mandates in Sec. 2 thereof that no search warrant 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 things to be seized; and
Sec. 3 thereof provides that any evidence obtained in violation of the preceding
section shall be inadmissible for any purpose in any proceeding.
These constitutional strictures are implemented by the following provisions of Rule
126 of the Rules of Court:
Sec. 3. Requisites for issuing search warrant. — A search warrant shall
not issue but upon probable cause in connection with one specific offense
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 things to be
seized.
Sec. 4. Examination of complainant; record. — The judge must, before
issuing the warrant, personally examine in the form of searching
questions and answers, in writing and under oath the complainant and
any witnesses he may produce on facts personally known to them and
attach to the record their sworn statements together with any affidavits
submitted.
Sec. 5. Issuance and form of search warrant. — If the judge is thereupon
satisfied of the existence of facts upon which the application is based, or
that there is probable cause to believe that they exist, he must issue the
warrant, which must be substantially in the form prescribed by these
Rules.
The constitutional and statutory provisions of various jurisdictions requiring a
showing of probable cause before a search warrant can be issued are mandatory
and must be complied with, and such a showing has been held to be an
unqualified condition precedent to the issuance of a warrant. A search warrant not
based on probable cause is a nullity, or is void, and the issuance thereof is, in legal
contemplation, arbitrary.61 It behooves us, then, to review the concept of probable
cause, firstly, from representative holdings in the American jurisdiction from which
we patterned our doctrines on the matter.
Although the term "probable cause" has been said to have a well-defined meaning
in the law, the term is exceedingly difficult to define, in this case, with any degree
of precision; indeed, no definition of it which would justify the issuance of a search
warrant can be formulated which would cover every state of facts which might
arise, and no formula or standard, or hard and fast rule, may be laid down which
may be applied to the facts of every situation.62 As to what acts constitute probable
cause seem incapable of definition.63 There is, of necessity, no exact test.64
At best, the term "probable cause" has been understood to mean a reasonable
ground of suspicion, supported by circumstances sufficiently strong in themselves
to warrant a cautious man in the belief that the person accused is guilty of the
offense with which he is charged;65 or the existence of such facts and
circumstances as would excite an honest belief in a reasonable mind acting on all
the facts and circumstances within the knowledge of the magistrate that the charge
made by the applicant for the warrant is true.66
Probable cause does not mean actual and positive cause, nor does it import
absolute certainty. The determination of the existence of probable cause is not
concerned with the question of whether the offense charged has been or is being
committed in fact, or whether the accused is guilty or innocent, but only whether
the affiant has reasonable grounds for his belief.67 The requirement is less than
certainty or proof , but more than suspicion or possibility.68
In Philippine jurisprudence, probable cause has been uniformly defined as such
facts and circumstances which would lead a reasonable, discreet and prudent man
to believe that an offense has been committed, and that the objects sought in
connection with the offense are in the place sought to be searched. 69 It being the
duty of the issuing officer to issue, or refuse to issue, the warrant as soon as
practicable after the application therefor is filed,70 the facts warranting the
conclusion of probable cause must be assessed at the time of such judicial
determination by necessarily using legal standards then set forth in law and
jurisprudence, and not those that have yet to be crafted thereafter.
As already stated, the definition of probable cause enunciated
in Burgos, Sr. vs. Chief of Staff, et al., supra, vis-a-vis the provisions of Sections 3
and 4 of Rule 126, were the prevailing and controlling legal standards, as they
continue to be, by which a finding of probable cause is tested. Since the propriety
of the issuance of a search warrant is to be determined at the time of the
application therefor, which in turn must not be too remote in time from the
occurrence of the offense alleged to have been committed, the issuing judge, in
determining the existence of probable cause, can and should logically look to the
touchstones in the laws theretofore enacted and the decisions already
promulgated at the time, and not to those which had not yet even been conceived
or formulated.
It is worth noting that neither the Constitution nor the Rules of Court attempt to
define probable cause, obviously for the purpose of leaving such matter to the
court's discretion within the particular facts of each case. Although the Constitution
prohibits the issuance of a search warrant in the absence of probable cause, such
constitutional inhibition does not command the legislature to establish a definition
or formula for determining what shall constitute probable cause. 71 Thus, Congress,
despite its broad authority to fashion standards of reasonableness for searches
and seizures,72 does not venture to make such a definition or standard formulation
of probable cause, nor categorize what facts and circumstances make up the
same, much less limit the determination thereof to and within the circumscription of
a particular class of evidence, all in deference to judicial discretion and probity. 73
Accordingly, to restrict the exercise of discretion by a judge by adding a particular
requirement (the presentation of master tapes, as intimated by 20th Century Fox)
not provided nor implied in the law for a finding of probable cause is beyond the
realm of judicial competence or statesmanship. It serves no purpose but to stultify
and constrict the judicious exercise of a court's prerogatives and to denigrate the
judicial duty of determining the existence of probable cause to a mere ministerial or
mechanical function. There is, to repeat, no law or rule which requires that the
existence of probable cause is or should be determined solely by a specific kind of
evidence. Surely, this could not have been contemplated by the framers of the
Constitution, and we do not believe that the Court intended the statement in 20th
Century Fox regarding master tapes as the dictum for all seasons and reasons in
infringement cases.
Turning now to the case at bar, it can be gleaned from the records that the lower
court followed the prescribed procedure for the issuance of a search warrant: (1)
the examination under oath or affirmation of the complainant and his witnesses,
with them particularly describing the place to be searched and the things to be
seized; (2) an examination personally conducted by the judge in the form of
searching questions and answers, in writing and under oath of the complainant and
witnesses on facts personally known to them; and, (3) the taking of sworn
statements, together with the affidavits submitted, which were duly attached to the
records.
Thereafter, the court a quo made the following factual findings leading to the
issuance of the search warrant now subject of this controversy:
In the instant case, the following facts have been established: (1)
copyrighted video tapes bearing titles enumerated in Search Warrant No.
87-053 were being sold, leased, distributed or circulated, or offered for
sale, lease, distribution, or transferred or caused to be transferred by
defendants at their video outlets, without the written consent of the private
complainants or their assignee; (2) recovered or confiscated from
defendants' possession were video tapes containing copyrighted motion
picture films without the authority of the complainant; (3) the video tapes
originated from spurious or unauthorized persons; and (4) said video
tapes were exact reproductions of the films listed in the search warrant
whose copyrights or distribution rights were owned by complainants.
The basis of these facts are the affidavits and depositions of NBI Senior
Agent Lauro C. Reyes, Atty. Rico V. Domingo, and Rene C. Baltazar.
Motion Pictures Association of America, Inc. (MPAA) thru their counsel,
Atty. Rico V. Domingo, filed a complaint with the National Bureau of
Investigation against certain video establishments one of which is
defendant, for violation of PD No. 49 as amended by PD No. 1988. Atty.
Lauro C. Reyes led a team to conduct discreet surveillance operations on
said video establishments. Per information earlier gathered by Atty.
Domingo, defendants were engaged in the illegal sale, rental, distribution,
circulation or public exhibition of copyrighted films of MPAA without its
written authority or its members. Knowing that defendant Sunshine Home
Video and its proprietor, Mr. Danilo Pelindario, were not authorized by
MPAA to reproduce, lease, and possess for the purpose of selling any of
its copyrighted motion pictures, instructed his researcher, Mr. Rene
Baltazar to rent two video cassettes from said defendants on October 21,
1987. Rene C. Baltazar proceeded to Sunshine Home Video and rented
tapes containing Little Shop of Horror. He was issued rental slip No.
26362 dated October 21, 1987 for P10.00 with a deposit of P100.00.
Again, on December 11, 1987, the returned to Sunshine Home Video and
rented Robocop with rental slip No. 25271 also for P10.00: On the basis
of the complaint of MPAA thru counsel, Atty. Lauro C. Reyes personally
went to Sunshine Home Video at No. 6 Mayfair Center, Magallanes
Commercial Center, Makati. His last visit was on December 7, 1987.
There, he found the video outlet renting, leasing, distributing video
cassette tapes whose titles were copyrighted and without the authority of
MPAA.
Given these facts, a probable cause exists. . . .74
The lower court subsequently executed a volte-face, despite its prior detailed and
substantiated findings, by stating in its order of November 22, 1988 denying
petitioners' motion for reconsideration and quashing the search warrant that —
. . . The two (2) cases have a common factual milieu; both involve alleged
pirated copyrighted films of private complainants which were found in the
possession or control of the defendants. Hence, the necessity of the
presentation of the master tapes from which the pirated films were
allegedly copied is necessary in the instant case, to establish the
existence of probable cause.75
Being based solely on an unjustifiable and improper retroactive application of the
master tape requirement generated by 20th Century Fox upon a factual situation
completely different from that in the case at bar, and without anything more, this
later order clearly defies elemental fair play and is a gross reversible error. In fact,
this observation of the Court in La Chemise Lacoste, S.A. vs. Fernandez, et
al., supra, may just as easily apply to the present case:
A review of the grounds invoked . . . in his motion to quash the search
warrants reveals the fact that they are not appropriate for quashing a
warrant. They are matters of defense which should be ventilated during
the trial on the merits of the case. . . .
As correctly pointed out by petitioners, a blind espousal of the requisite of
presentation of the master tapes in copyright infringement cases, as the prime
determinant of probable cause, is too exacting and impracticable a requirement to
be complied with in a search warrant application which, it must not be overlooked,
is only an ancillary proceeding. Further, on realistic considerations, a strict
application of said requirement militates against the elements of secrecy and
speed which underlie covert investigative and surveillance operations in police
enforcement campaigns against all forms of criminality, considering that the master
tapes of a motion picture required to be presented before the court consists of
several reels contained in circular steel casings which, because of their bulk, will
definitely draw attention, unlike diminutive objects like video tapes which can be
easily concealed.76 With hundreds of titles being pirated, this onerous and tedious
imposition would be multiplied a hundredfold by judicial fiat, discouraging and
preventing legal recourses in foreign jurisdictions.
Given the present international awareness and furor over violations in large scale
of intellectual property rights, calling for transnational sanctions, it bears calling to
mind the Court's admonition also in La Chemise Lacoste, supra, that —
. . . . Judges all over the country are well advised to remember that court
processes should not be used as instruments to, unwittingly or otherwise,
aid counterfeiters and intellectual pirates, tie the hands of the law as it
seeks to protect the Filipino consuming public and frustrate executive and
administrative implementation of solemn commitments pursuant to
international conventions and treaties.
III
The amendment to Section 56 of Presidential Decree No. 49 by Presidential
Decree No. 1987,77 which should here be publicized judicially, brought about the
revision of its penalty structure and enumerated additional acts considered
violative of said decree on intellectual property, namely, (1) directly or indirectly
transferring or causing to be transferred any sound recording or motion picture or
other audio-visual works so recorded with intent to sell, lease, publicly exhibit or
cause to be sold, leased or publicly exhibited, or to use or cause to be used for
profit such articles on which sounds, motion pictures, or other audio-visual works
are so transferred without the written consent of the owner or his assignee; (2)
selling, leasing, distributing, circulating, publicly exhibiting, or offering for sale,
lease, distribution, or possessing for the purpose of sale, lease, distribution,
circulation or public exhibition any of the abovementioned articles, without the
written consent of the owner or his assignee; and, (3) directly or indirectly offering
or making available for a fee, rental, or any other form of compensation any
equipment, machinery, paraphernalia or any material with the knowledge that such
equipment, machinery, paraphernalia or material will be used by another to
reproduce, without the consent of the owner, any phonograph record, disc, wire,
tape, film or other article on which sounds, motion pictures or other audio-visual
recordings may be transferred, and which provide distinct bases for criminal
prosecution, being crimes independently punishable under Presidential Decree No.
49, as amended, aside from the act of infringing or aiding or abetting such
infringement under Section 29.
The trial court's finding that private respondents committed acts in blatant
transgression of Presidential Decree No. 49 all the more bolsters its findings of
probable cause, which determination can be reached even in the absence of
master tapes by the judge in the exercise of sound discretion. The executive
concern and resolve expressed in the foregoing amendments to the decree for the
protection of intellectual property rights should be matched by corresponding
judicial vigilance and activism, instead of the apathy of submitting to technicalities
in the face of ample evidence of guilt.
The essence of intellectual piracy should be essayed in conceptual terms in order
to underscore its gravity by an appropriate understanding thereof. Infringement of a
copyright is a trespass on a private domain owned and occupied by the owner of
the copyright, and, therefore, protected by law, and infringement of copyright, or
piracy, which is a synonymous term in this connection, consists in the doing by any
person, without the consent of the owner of the copyright, of anything the sole right
to do which is conferred by statute on the owner of the copyright. 78
A copy of a piracy is an infringement of the original, and it is no defense that the
pirate, in such cases, did not know what works he was indirectly copying, or did not
know whether or not he was infringing any copyright; he at least knew that what he
was copying was not his, and he copied at his peril. In determining the question of
infringement, the amount of matter copied from the copyrighted work is an
important consideration. To constitute infringement, it is not necessary that the
whole or even a large portion of the work shall have been copied. If so much is
taken that the value of the original is sensibly diminished, or the labors of the
original author are substantially and to an injurious extent appropriated by another,
that is sufficient in point of law to constitute a
piracy.79 The question of whether there has been an actionable infringement of a
literary, musical, or artistic work in motion pictures, radio or television being one of
fact,80 it should properly be determined during the trial. That is the stage calling for
conclusive or preponderating evidence, and not the summary proceeding for the
issuance of a search warrant wherein both lower courts erroneously require the
master tapes.
In disregarding private respondent's argument that Search Warrant No. 87-053 is a
general warrant, the lower court observed that "it was worded in a manner that the
enumerated seizable items bear direct relation to the offense of violation of Sec. 56
of PD 49 as amended. It authorized only the seizur(e) of articles used or intended
to be used in the unlawful sale, lease and other unconcerted acts in violation of PD
49 as amended. . . .81
On this point, Bache and Co., (Phil.), Inc., et al. vs. Ruiz, et al.,82 instructs and
enlightens:
A search warrant may be said to particularly describe the things to be
seized when the description therein is as specific as the circumstances
will ordinarily allow (People vs. Rubio, 57 Phil. 384); or when the
description expresses a conclusion of fact — not of law — by which the
warrant officer may be guided in making the search and seizure (idem.,
dissent of Abad Santos, J.,); or when the things described are limited to
those which bear direct relation to the offense for which the warrant is
being issued (Sec 2, Rule 126, Revised Rules of Court). . . . If the articles
desired to be seized have any direct relation to an offense committed, the
applicant must necessarily have some evidence, other than those articles,
to prove the said offense; and the articles subject of search and seizure
should come in handy merely to strengthen such evidence. . . .
On private respondents' averment that the search warrant was made applicable to
more than one specific offense on the ground that there are as many offenses of
infringement as there are rights protected and, therefore, to issue one search
warrant for all the movie titles allegedly pirated violates the rule that a search
warrant must be issued only in connection with one specific offense, the lower
court said:
. . . . As the face of the search warrant itself indicates, it was issued for
violation of Section 56, PD 49 as amended only. The specifications
therein (in Annex A) merely refer to the titles of the copyrighted motion
pictures/films belonging to private complainants which defendants were in
control/possession for sale, lease, distribution or public exhibition in
contravention of Sec. 56, PD 49 as amended.83
That there were several counts of the offense of copyright infringement and the
search warrant uncovered several contraband items in the form of pirated video
tapes is not to be confused with the number of offenses charged. The search
warrant herein issued does not violate the one-specific-offense rule.
It is pointless for private respondents to insist on compliance with the registration
and deposit requirements under Presidential Decree No. 49 as prerequisites for
invoking the court's protective mantle in copyright infringement cases. As explained
by the court below:
Defendants-movants contend that PD 49 as amended covers only
producers who have complied with the requirements of deposit and notice
(in other words registration) under Sections 49 and 50 thereof. Absent
such registration, as in this case, there was no right created, hence, no
infringement under PD 49 as amended. This is not well-taken.
As correctly pointed out by private complainants-oppositors, the
Department of Justice has resolved this legal question as far back as
December 12, 1978 in its Opinion No. 191 of the then Secretary of Justice
Vicente Abad Santos which stated that Sections 26 and 50 do not apply
to cinematographic works and PD No. 49 "had done away with the
registration and deposit of cinematographic works" and that "even without
prior registration and deposit of a work which may be entitled to protection
under the Decree, the creator can file action for infringement of its rights".
He cannot demand, however, payment of damages arising from
infringement. The same opinion stressed that "the requirements of
registration and deposit are thus retained under the Decree, not as
conditions for the acquisition of copyright and other rights, but as
prerequisites to a suit for damages". The statutory interpretation of the
Executive Branch being correct, is entitled (to) weight and respect.
xxx xxx xxx
Defendants-movants maintain that complainant and his witnesses led the
Court to believe that a crime existed when in fact there was none. This is
wrong. As earlier discussed, PD 49 as amended, does not require
registration and deposit for a creator to be able to file an action for
infringement of his rights. These conditions are merely pre-requisites to
an action for damages. So, as long as the proscribed acts are shown to
exist, an action for infringement may be initiated.84
Accordingly, the certifications85 from the Copyright Section of the National Library,
presented as evidence by private respondents to show non-registration of some of
the films of petitioners, assume no evidentiary weight or significance whatsoever.
Furthermore, a closer review of Presidential Decree No. 49 reveals that even with
respect to works which are required under Section 26 thereof to be registered and
with copies to deposited with the National Library, such as books, including
composite and cyclopedic works, manuscripts, directories and gazetteers; and
periodicals, including pamphlets and newspapers; lectures, sermons, addresses,
dissertations prepared for oral delivery; and letters, the failure to comply with said
requirements does not deprive the copyright owner of the right to sue for
infringement. Such non-compliance merely limits the remedies available to him and
subjects him to the corresponding sanction.
The reason for this is expressed in Section 2 of the decree which prefaces its
enumeration of copyrightable works with the explicit statement that "the rights
granted under this Decree shall, from the moment of creation, subsist with respect
to any of the following classes of works." This means that under the present state
of the law, the copyright for a work is acquired by an intellectual creator from the
 moment of creation even in the absence of registration and deposit. As has been
authoritatively clarified:

The registration and deposit of two complete copies or reproductions of

the work with the National Library within three weeks after the first public
dissemination or performance of the work, as provided for in Section 26
(P.D. No. 49, as amended), is not for the purpose of securing a copyright
of the work, but rather to avoid the penalty for non-compliance of the
deposit of said two copies and in order to recover damages in an
infringement suit.86

One distressing observation. This case has been fought on the basis of, and its
resolution long delayed by resort to, technicalities to a virtually abusive extent by
private respondents, without so much as an attempt to adduce any credible
evidence showing that they conduct their business legitimately and fairly. The fact
that private respondents could not show proof of their authority or that there was
consent from the copyright owners for them to sell, lease, distribute or circulate
petitioners' copyrighted films immeasurably bolsters the lower court's initial finding
of probable cause. That private respondents are licensed by the Videogram
Regulatory Board does not insulate them from criminal and civil liability for their
unlawful business practices. What is more deplorable is that the reprehensible acts
of some unscrupulous characters have stigmatized the Philippines with an
unsavory reputation as a hub for intellectual piracy in this part of the globe,
formerly in the records of the General Agreement on Tariffs and Trade and, now, of
the World Trade Organization. Such acts must not be glossed over but should be
denounced and repressed lest the Philippines become an international pariah in
the global intellectual community.

WHEREFORE, the assailed judgment and resolution of respondent Court of

Appeals, and necessarily inclusive of the order of the lower court dated November
22, 1988, are hereby REVERSED and SET ASIDE. The order of the court a quo of
September 5, 1988 upholding the validity of Search Warrant No. 87-053 is hereby
REINSTATED, and said court is DIRECTED to take and expeditiously proceed
with such appropriate proceedings as may be called for in this case. Treble costs
are further assessed against private respondents.

SO ORDERED.

Narvasa, C.J., Padilla, Davide, Jr., Romero, Melo, Puno, Vitug, Kapunan, Mendoza,
Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur.

Bellosillo, J., took no part.

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.

Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

G.R. No. 120295 June 28, 1996
JUAN G. FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.
G.R. No. 123755 June 28, 1996
RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.
PANGANIBAN, J.:p
The ultimate question posed before this Court in these twin cases is: Who should be
declared the rightful governor of Sorsogon -
(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three
successive elections but who was twice declared by this Court to be disqualified to hold
such office due to his alien citizenship, and who now claims to have re-assumed his lost
Philippine citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes
cast in favor of Frivaldo should be considered void; that the electorate should be deemed to
have intentionally thrown away their ballots; and that legally, he secured the most number
of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to
the position of governor, but who according to prevailing jurisprudence should take over the
said post inasmuch as, by the ineligibility of Frivaldo, a "permanent vacancy in the contested
office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on repatriation,
clarifies/reiterates/amplifies existing jurisprudence on citizenship and elections, and upholds
the superiority of substantial justice over pure legalisms.
G.R. No. 123755
This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and
preliminary injunction to review and annul a Resolution of the respondent Commission on
Elections (Comelec), First Division,1 promulgated on December 19, 19952 and another
Resolution of the Comelec en banc promulgated February 23, 19963 denying petitioner's
motion for reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy
for the office of Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995,
petitioner Raul R. Lee, another candidate, filed a petition4 with the Comelec docketed as
SPA No. 95-028 praying that Frivaldo "be disqualified from seeking or holding any public
office or position by reason of not yet being a citizen of the Philippines", and that his
Certificate of Candidacy be canceled. On May 1, 1995, the Second Division of the Comelec
promulgated a Resolution5 granting the petition with the following disposition6:
WHEREFORE, this Division resolves to GRANT the petition and declares
that respondent is DISQUALIFIED to run for the Office of Governor of
Sorsogon on the ground that he is NOT a citizen of the Philippines.
Accordingly, respondent's certificate of candidacy is canceled.
The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May
8, 1995 elections. So, his candidacy continued and he was voted for during the elections
held on said date. On May 11, 1995, the Comelec en banc7 affirmed the aforementioned
Resolution of the Second Division.
The Provincial Board of Canvassers completed the canvass of the election returns and a
Certificate of Votes8 dated May 27, 1995 was issued showing the following votes obtained
by the candidates for the position of Governor of Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
Raul R. Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition9 praying for
his proclamation as the duly-elected Governor of Sorsogon.
In an order10 dated June 21, 1995, but promulgated according to the petition "only on June
29, 1995," the Comelec en banc directed "the Provincial Board of Canvassers of Sorsogon
to reconvene for the purpose of proclaiming candidate Raul Lee as the winning
gubernatorial candidate in the province of Sorsogon on June 29, 1995 . . ." Accordingly, at
8:30 in the evening of June 30, 1995, Lee was proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition, 11 docketed as SPC No. 95-
317, praying for the annulment of the June 30, 1995 proclamation of Lee and for his own
proclamation. He alleged that on June 30, 1995, at 2:00 in the afternoon, he took his oath of
allegiance as a citizen of the Philippines after "his petition for repatriation under P.D. 725
which he filed with the Special Committee on Naturalization in September 1994 had been
granted". As such, when "the said order (dated June 21, 1995) (of the Comelec) . . . was
released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there
was no more legal impediment to the proclamation (of Frivaldo) as governor . . ." In the
alternative, he averred that pursuant to the two cases of Labo vs. Comelec,12 the Vice-
Governor - not Lee - should occupy said position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein assailed
Resolution13 holding that Lee, "not having garnered the highest number of votes," was not
legally entitled to be proclaimed as duly-elected governor; and that Frivaldo, "having
garnered the highest number of votes,
and . . . having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the
provisions of Presidential Decree No. 725 . . . (is) qualified to hold the office of governor of
Sorsogon"; thus:
PREMISES CONSIDERED, the Commission (First Division), therefore
RESOLVES to GRANT the Petition.
Consistent with the decisions of the Supreme Court, the proclamation of
Raul R. Lee as Governor of Sorsogon is hereby ordered annulled, being
contrary to law, he not having garnered the highest number of votes to
warrant his proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the
Provincial Board of Canvassers is directed to immediately reconvene and,
on the basis of the completed canvass, proclaim petitioner Juan G.
Frivaldo as the duly elected Governor of Sorsogon having garnered the
highest number of votes, and he having reacquired his Filipino citizenship
by repatriation on June 30, 1995 under the provisions of Presidential
Decree No. 725 and, thus, qualified to hold the office of Governor of
Sorsogon.
Conformably with Section 260 of the Omnibus Election Code
(B.P. Blg. 881), the Clerk of the Commission is directed to notify His
Excellency the President of the Philippines, and the Secretary of the
Sangguniang Panlalawigan of the Province of Sorsogon of this resolution
immediately upon the due implementation thereof.
On December 26, 1995, Lee filed a motion for reconsideration which was denied by the
Comelec en banc in its Resolution 14 promulgated on February 23, 1996. On February 26,
1996, the present petition was filed. Acting on the prayer for a temporary restraining order,
this Court issued on February 27, 1996 a Resolution which inter alia directed the parties "to
maintain the status quo prevailing prior to the filing of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand may briefly be capsulized in the following
propositions"15:
First -- The initiatory petition below was so far insufficient in form and
substance to warrant the exercise by the COMELEC of its jurisdiction with
the result that, in effect, the COMELEC acted without jurisdiction in taking
cognizance of and deciding said petition;
Second -- The judicially declared disqualification of respondent was a
continuing condition and rendered him ineligible to run for, to be elected
to and to hold the Office of Governor;
Third -- The alleged repatriation of respondent was neither valid nor is the
effect thereof retroactive as to cure his ineligibility and qualify him to hold
the Office of Governor; and
Fourth -- Correctly read and applied, the Labo Doctrine fully supports the
validity of petitioner's proclamation as duly elected Governor of Sorsogon.
G.R. No. 120295
This is a petition to annul three Resolutions of the respondent Comelec, the first two of
which are also at issue in G.R. No. 123755, as follows:
1. Resolution16 of the Second Division, promulgated on May 1, 1995,
disqualifying Frivaldo from running for governor of Sorsogon in the May 8,
1995 elections "on the ground that he is not a citizen of the Philippines";
2. Resolution17 of the Comelec en banc, promulgated on May 11, 1995;
and
3. Resolution18 of the Comelec en banc, promulgated also on May 11,
1995 suspending the proclamation of, among others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No. 123755. However,
Frivaldo assails the above-mentioned resolutions on a different ground: that under Section
78 of the Omnibus Election Code, which is reproduced hereinunder:
Sec. 78. Petition to deny due course or to cancel a certificate of
candidacy. -- A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the
ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after notice and hearing, not later than
fifteen days before the election. (Emphasis supplied.)
the Comelec had no jurisdiction to issue said Resolutions because they were not
rendered "within the period allowed by law" i.e., "not later than fifteen days before
the election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for
disqualification within the period of fifteen days prior to the election as provided by law is a
jurisdictional defect which renders the said Resolutions null and void.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755
since they are intimately related in their factual environment and are identical in the ultimate
question raised, viz., who should occupy the position of governor of the province of
Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties and required them
thereafter to file simultaneously their respective memoranda.
The Consolidated Issues
From the foregoing submissions, the consolidated issues may be restated as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of
citizenship as to qualify him to be proclaimed and to hold the Office of Governor? If not, may
it be given retroactive effect? If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a
continuing bar to his eligibility to run for, be elected to or hold the governorship of
Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-
317 considering that said petition is not "a pre-proclamation case, an election protest or
a quo warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of
existing jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the
assailed Resolutions, all of which prevented Frivaldo from assuming the governorship of
Sorsogon, considering that they were not rendered within the period referred to in Section
78 of the Omnibus Election Code, viz., "not later than fifteen days before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue
in this case. All the other matters raised are secondary to this.
The Local Government Code of 199119 expressly requires Philippine citizenship as a
qualification for elective local officials, including that of provincial governor, thus:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of
the Philippines; a registered voter in the barangay, municipality, city, or
province or, in the case of a member of the sangguniang panlalawigan,
sangguniang panlungsod, or sangguniang bayan, the district where he
intends to be elected; a resident therein for at least one (1) year
immediately preceding the day of the election; and able to read and write
Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice
governor or member of the sangguniang panlalawigan,
or mayor, vice mayor or member of the sangguniang
panlungsod of highly urbanized cities must be at least
twenty-three (23) years of age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court 20 as a non-citizen, it is therefore
incumbent upon him to show that he has reacquired citizenship; in fine, that he possesses
the qualifications prescribed under the said statute (R.A. 7160).
Under Philippine law,21 citizenship may be reacquired by direct act of Congress, by
naturalization or by repatriation. Frivaldo told this Court in G.R. No. 104654 22 and during the
oral argument in this case that he tried to resume his citizenship by direct act of Congress,
but that the bill allowing him to do so "failed to materialize, notwithstanding the endorsement
of several members of the House of Representatives" due, according to him, to the
"maneuvers of his political rivals." In the same case, his attempt at naturalization was
rejected by this Court because of jurisdictional, substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by
the electorate of Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in
1992, and 20,000 in 1995 over the same opponent Raul Lee. Twice, he was judicially
declared a non-Filipino and thus twice disqualified from holding and discharging his popular
mandate. Now, he comes to us a third time, with a fresh vote from the people of Sorsogon
and a favorable decision from the Commission on Elections to boot. Moreover, he now
boasts of having successfully passed through the third and last mode of reacquiring
citizenship: by repatriation under P.D. No. 725, with no less than the Solicitor General
himself, who was the prime opposing counsel in the previous cases he lost, this time, as
counsel for co-respondent Comelec, arguing the validity of his cause (in addition to his able
private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance under the
provisions of said Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists
that he -- not Lee -- should have been proclaimed as the duly-elected governor of Sorsogon
when the Provincial Board of Canvassers met at 8:30 p.m. on the said date since, clearly
and unquestionably, he garnered the highest number of votes in the elections and since at
that time, he already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted with serious defects, which we
shall now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting that "then
President Corazon Aquino exercising legislative powers under the Transitory Provisions of
the 1987 Constitution, forbade the grant of citizenship by Presidential Decree or Executive
Issuances as the same poses a serious and contentious issue of policy which the present
government, in the exercise of prudence and sound discretion, should best leave to the
judgment of the first Congress under the 1987 Constitution", adding that in her
memorandum dated March 27, 1987 to the members of the Special Committee on
Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino
directed them "to cease and desist from undertaking any and all proceedings within your
functional area of responsibility as defined under Letter of Instructions (LOI) No. 270 dated
April 11, 1975, as amended."23
This memorandum dated March 27, 198724 cannot by any stretch of legal hermeneutics be
construed as a law sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed
only by subsequent ones 25 and a repeal may be express or implied. It is obvious that no
express repeal was made because then President Aquino in her memorandum -- based on
the copy furnished us by Lee -- did not categorically and/or impliedly state that P.D. 725 was
being repealed or was being rendered without any legal effect. In fact, she did not even
mention it specifically by its number or text. On the other hand, it is a basic rule of statutory
construction that repeals by implication are not favored. An implied repeal will not be
allowed "unless it is convincingly and unambiguously demonstrated that the two laws are
clearly repugnant and patently inconsistent that they cannot co-exist".26
The memorandum of then President Aquino cannot even be regarded as a legislative
enactment, for not every pronouncement of the Chief Executive even under the Transitory
Provisions of the 1987 Constitution can nor should be regarded as an exercise of her law-
making powers. At best, it could be treated as an executive policy addressed to the Special
Committee to halt the acceptance and processing of applications for repatriation pending
whatever "judgment the first Congress under the 1987 Constitution" might make. In other
words, the former President did not repeal P.D. 725 but left it to the first Congress -- once
created -- to deal with the matter. If she had intended to repeal such law, she should have
unequivocally said so instead of referring the matter to Congress. The fact is she carefully
couched her presidential issuance in terms that clearly indicated the intention of "the
present government, in the exercise of prudence and sound discretion" to leave the matter
of repeal to the new Congress. Any other interpretation of the said Presidential
Memorandum, such as is now being proffered to the Court by Lee, would visit unmitigated
violence not only upon statutory construction but on common sense as well.
Second, Lee also argues that "serious congenital irregularities flawed the repatriation
proceedings," asserting that Frivaldo's application therefor was "filed on June 29, 1995 . . .
(and) was approved in just one day or on June 30, 1995 . . .", which "prevented a judicious
review and evaluation of the merits thereof." Frivaldo counters that he filed his application
for repatriation with the Office of the President in Malacañang Palace on August 17, 1994.
This is confirmed by the Solicitor General. However, the Special Committee was reactivated
only on June 8, 1995, when presumably the said Committee started processing his
application. On June 29, 1995, he filled up and re-submitted the FORM that the Committee
required. Under these circumstances, it could not be said that there was "indecent haste" in
the processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special Committee on
Naturalization was intended solely for the personal interest of respondent,"27 the Solicitor
General explained during the oral argument on March 19, 1996 that such allegation is
simply baseless as there were many others who applied and were considered for
repatriation, a list of whom was submitted by him to this Court, through a
Manifestation28 filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the presumption of
regularity in the performance of official duty and the presumption of legality in the
repatriation of Frivaldo have not been successfully rebutted by Lee. The mere fact that the
proceedings were speeded up is by itself not a ground to conclude that such proceedings
were necessarily tainted. After all, the requirements of repatriation under P.D. No. 725 are
not difficult to comply with, nor are they tedious and cumbersome. In fact, P.D.
72529 itself requires very little of an applicant, and even the rules and regulations to
implement the said decree were left to the Special Committee to promulgate. This is not
unusual since, unlike in naturalization where an alien covets a first-time entry into Philippine
political life, in repatriation the applicant is a former natural-born Filipino who is merely
seeking to reacquire his previous citizenship. In the case of Frivaldo, he was undoubtedly a
natural-born citizen who openly and faithfully served his country and his province prior to his
naturalization in the United States -- a naturalization he insists was made necessary only to
escape the iron clutches of a dictatorship he abhorred and could not in conscience embrace
-- and who, after the fall of the dictator and the re-establishment of democratic space,
wasted no time in returning to his country of birth to offer once more his talent and services
to his people.
So too, the fact that ten other persons, as certified to by the Solicitor General, were granted
repatriation argues convincingly and conclusively against the existence of favoritism
vehemently posited by Raul Lee. At any rate, any contest on the legality of Frivaldo's
repatriation should have been pursued before the Committee itself, and, failing there, in the
Office of the President, pursuant to the doctrine of exhaustion of administrative remedies.
Third, Lee further contends that assuming the assailed repatriation to be valid, nevertheless
it could only be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship
qualification prescribed by the Local Government Code "must exist on the date of his
election, if not when the certificate of candidacy is filed," citing our decision in G.R.
10465430 which held that "both the Local Government Code and the Constitution require
that only Philippine citizens can run and be elected to public office." Obviously, however,
this was a mere obiter as the only issue in said case was whether Frivaldo's naturalization
was valid or not -- and NOT the effective date thereof. Since the Court held his
naturalization to be invalid, then the issue of when an aspirant for public office should be a
citizen was NOT resolved at all by the Court. Which question we shall now directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province . . .
where he intends to be elected;
 * a resident therein for at least one (1) year immediately preceding the
day of the election;
* able to read and write Filipino or any other local language or dialect.
* In addition, "candidates for the position of governor . . . must be at least
twenty-three (23) years of age on election day.
From the above, it will be noted that the law does not specify any particular date or time
when the candidate must possess citizenship, unlike that for residence (which must consist
of at least one year's residency immediately preceding the day of election) and age (at least
twenty three years of age on election day).
Philippine citizenship is an indispensable requirement for holding an elective public
office,31 and the purpose of the citizenship qualification is none other than to ensure that no
alien, i.e., no person owing allegiance to another nation, shall govern our people and our
country or a unit of territory thereof. Now, an official begins to govern or to discharge his
functions only upon his proclamation and on the day the law mandates his term of office to
begin. Since Frivaldo re-assumed his citizenship on June 30, 1995 -- the very day32 the term
of office of governor (and other elective officials) began -- he was therefore already qualified
to be proclaimed, to hold such office and to discharge the functions and responsibilities
thereof as of said date. In short, at that time, he was already qualified to govern his native
Sorsogon. This is the liberal interpretation that should give spirit, life and meaning to our law
on qualifications consistent with the purpose for which such law was enacted. So too, even
from a literal (as distinguished from liberal) construction, it should be noted that Section 39
of the Local Government Code speaks of "Qualifications" of "ELECTIVE OFFICIALS", not of
candidates. Why then should such qualification be required at the time of election or at the
time of the filing of the certificates of candidacies, as Lee insists? Literally, such
qualifications -- unless otherwise expressly conditioned, as in the case of age and residence
-- should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at
the time he is proclaimed and at the start of his term -- in this case, on June 30, 1995.
Paraphrasing this Court's ruling in Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the
purpose of the citizenship requirement is to ensure that our people and country do not end
up being governed by aliens, i.e., persons owing allegiance to another nation, that aim or
purpose would not be thwarted but instead achieved by construing the citizenship
qualification as applying to the time of proclamation of the elected official and at the start of
his term.
But perhaps the more difficult objection was the one raised during the oral argument 34 to the
effect that the citizenship qualification should be possessed at the time the candidate (or for
that matter the elected official) registered as a voter. After all, Section 39, apart from
requiring the official to be a citizen, also specifies as another item of qualification, that he be
a "registered voter". And, under the law35 a "voter" must be a citizen of the Philippines. So
therefore, Frivaldo could not have been a voter -- much less a validly registered one -- if he
was not a citizen at the time of such registration.
The answer to this problem again lies in discerning the purpose of the requirement. If the
law intended the citizenship qualification to be possessed prior to election consistent with
the requirement of being a registered voter, then it would not have made citizenship a
SEPARATE qualification. The law abhors a redundancy. It therefore stands to reason that
the law intended CITIZENSHIP to be a qualification distinct from being a VOTER, even if
being a voter presumes being a citizen first. It also stands to reason that the voter
requirement was included as another qualification (aside from "citizenship"), not to reiterate
the need for nationality but to require that the official be registered as a voter IN THE AREA
OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter in the
barangay, municipality, city, or province . . . where he intends to be elected." It should be
emphasized that the Local Government Code requires an elective official to be a registered
voter. It does not require him to vote actually. Hence, registration -- not the actual voting -- is
the core of this "qualification". In other words, the law's purpose in this second requirement
is to ensure that the prospective official is actually registered in the area he seeks to govern
-- and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not disputed -- that
he "was and is a registered voter of Sorsogon, and his registration as a voter has been
sustained as valid by judicial declaration . . . In fact, he cast his vote in his precinct on May
8, 1995."36
So too, during the oral argument, his counsel steadfastly maintained that "Mr. Frivaldo has
always been a registered voter of Sorsogon. He has voted in 1987, 1988, 1992, then he
voted again in 1995. In fact, his eligibility as a voter was questioned, but the court dismissed
(sic) his eligibility as a voter and he was allowed to vote as in fact, he voted in all the
previous elections including on May 8, 1995."3 7
It is thus clear that Frivaldo is a registered voter in the province where he intended to be
elected.
There is yet another reason why the prime issue of citizenship should be reckoned from the
date of proclamation, not necessarily the date of election or date of filing of the certificate of
candidacy. Section 253 of the Omnibus Election Code 38 gives any voter, presumably
including the defeated candidate, the opportunity to question the ELIGIBILITY (or the
disloyalty) of a candidate. This is the only provision of the Code that authorizes a remedy on
how to contest before the Comelec an incumbent's ineligibility arising from failure to meet
the qualifications enumerated under Sec. 39 of the Local Government Code. Such remedy
of Quo Warranto can be availed of "within ten days after proclamation" of the winning
candidate. Hence, it is only at such time that the issue of ineligibility may be taken
cognizance of by the Commission. And since, at the very moment of Lee's proclamation
(8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having
taken his oath of allegiance earlier in the afternoon of the same day, then he should have
been the candidate proclaimed as he unquestionably garnered the highest number of votes
in the immediately preceding elections and such oath had already cured his previous
"judicially-declared" alienage. Hence, at such time, he was no longer ineligible.
But to remove all doubts on this important issue, we also hold that the repatriation of
Frivaldo RETROACTED to the date of the filing of his application on August 17, 1994.
It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no retroactive
effect, unless the contrary is provided." But there are settled exceptions40 to this general
rule, such as when the statute is CURATIVE or REMEDIAL in nature or when it CREATES
NEW RIGHTS.
According to Tolentino,41 curative statutes are those which undertake to cure errors and
irregularities, thereby validating judicial or administrative proceedings, acts of public officers,
or private deeds and contracts which otherwise would not produce their intended
consequences by reason of some statutory disability or failure to comply with some
technical requirement. They operate on conditions already existing, and are necessarily
retroactive in operation. Agpalo,42 on the other hand, says that curative statutes are
"healing acts . . . curing defects and adding to the means of enforcing existing obligations . .
. (and) are intended to supply defects, abridge superfluities in existing laws, and curb certain
evils. . . . By their very nature, curative statutes are retroactive . . . (and) reach back to past
events to correct errors or irregularities and to render valid and effective attempted acts
which would be otherwise ineffective for the purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or
modes of procedure, which do not create new or take away vested rights, but only operate
in furtherance of the remedy or confirmation of such rights, ordinarily do not come within the
legal meaning of a retrospective law, nor within the general rule against the retrospective
operation of statutes.43
A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a
new remedy, thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725
expressly recognizes the plight of "many Filipino women (who) had lost their Philippine
citizenship by marriage to aliens" and who could not, under the existing law (C.A. No. 63, as
amended) avail of repatriation until "after the death of their husbands or the termination of
their marital status" and who could neither be benefitted by the 1973 Constitution's new
provision allowing "a Filipino woman who marries an alien to retain her Philippine citizenship
. . ." because "such provision of the new Constitution does not apply to Filipino women who
had married aliens before said constitution took effect." Thus, P.D. 725 granted a new
right to these women -- the right to re-acquire Filipino citizenship even during their marital
coverture, which right did not exist prior to P.D. 725. On the other hand, said statute also
provided a new remedy and a new right in favor of other "natural born Filipinos who (had)
lost their Philippine citizenship but now desire to re-acquire Philippine citizenship", because
prior to the promulgation of P.D. 725 such former Filipinos would have had to undergo the
tedious and cumbersome process of naturalization, but with the advent of P.D. 725 they
could now re-acquire their Philippine citizenship under the simplified procedure of
repatriation.
The Solicitor General44 argues:
By their very nature, curative statutes are retroactive, (DBP vs. CA, 96
SCRA 342), since they are intended to supply defects, abridge
superfluities in existing laws (Del Castillo vs. Securities and Exchange
Commission, 96 Phil. 119) and curb certain evils (Santos vs. Duata, 14
SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the existing
naturalization law, specifically C.A. No. 63 wherein married Filipino
women are allowed to repatriate only upon the death of their husbands,
and natural-born Filipinos who lost their citizenship by naturalization and
other causes faced the difficulty of undergoing the rigid procedures of
C.A. 63 for reacquisition of Filipino citizenship by naturalization.
Presidential Decree No. 725 provided a remedy for the aforementioned
legal aberrations and thus its provisions are considered essentially
remedial and curative.
In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable
that the legislative intent was precisely to give the statute retroactive operation. "(A)
retrospective operation is given to a statute or amendment where the intent that it should so
operate clearly appears from a consideration of the act as a whole, or from the terms
thereof."45 It is obvious to the Court that the statute was meant to "reach back" to those
persons, events and transactions not otherwise covered by prevailing law and
jurisprudence. And inasmuch as it has been held that citizenship is a political and civil right
equally as important as the freedom of speech, liberty of abode, the right against
unreasonable searches and seizures and other guarantees enshrined in the Bill of Rights,
therefore the legislative intent to give retrospective operation to P.D. 725 must be given the
fullest effect possible. "(I)t has been said that a remedial statute must be so construed as to
make it effect the evident purpose for which it was enacted, so that if the reason of the
statute extends to past transactions, as well as to those in the future, then it will be so
applied although the statute does not in terms so direct, unless to do so would impair some
vested right or violate some constitutional guaranty." 46 This is all the more true of P.D. 725,
which did not specify any restrictions on or delimit or qualify the right of repatriation granted
therein.
At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit
Frivaldo considering that said law was enacted on June 5, 1975, while Frivaldo lost his
Filipino citizenship much later, on January 20, 1983, and applied for repatriation even later,
on August 17, 1994?
While it is true that the law was already in effect at the time that Frivaldo became an
American citizen, nevertheless, it is not only the law itself (P.D. 725) which is to be given
retroactive effect, but even the repatriation granted under said law to Frivaldo on June 30,
1995 is to be deemed to have retroacted to the date of his application therefor, August 17,
1994. The reason for this is simply that if, as in this case, it was the intent of the legislative
authority that the law should apply to past events -- i.e., situations and transactions existing
even before the law came into being -- in order to benefit the greatest number of former
Filipinos possible thereby enabling them to enjoy and exercise the constitutionally
guaranteed right of citizenship, and such legislative intention is to be given the fullest effect
and expression, then there is all the more reason to have the law apply in a retroactive or
retrospective manner to situations, events and transactions subsequent to the passage of
such law. That is, the repatriation granted to Frivaldo on June 30, 1995 can and should be
made to take effect as of date of his application. As earlier mentioned, there is nothing in the
law that would bar this or would show a contrary intention on the part of the legislative
authority; and there is no showing that damage or prejudice to anyone, or anything unjust or
injurious would result from giving retroactivity to his repatriation. Neither has Lee shown that
there will result the impairment of any contractual obligation, disturbance of any vested right
or breach of some constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal
interpretation of Philippine laws and whatever defects there were in his nationality should
now be deemed mooted by his repatriation.
Another argument for retroactivity to the date of filing is that it would prevent prejudice to
applicants. If P.D. 725 were not to be given retroactive effect, and the Special Committee
decides not to act, i.e., to delay the processing of applications for any substantial length of
time, then the former Filipinos who may be stateless, as Frivaldo -- having already
renounced his American citizenship -- was, may be prejudiced for causes outside their
control. This should not be. In case of doubt in the interpretation or application of laws, it is
to be presumed that the law-making body intended right and justice to prevail.4 7
And as experience will show, the Special Committee was able to process, act upon and
grant applications for repatriation within relatively short spans of time after the same were
filed.48 The fact that such interregna were relatively insignificant minimizes the likelihood of
prejudice to the government as a result of giving retroactivity to repatriation. Besides, to the
mind of the Court, direct prejudice to the government is possible only where a person's
repatriation has the effect of wiping out a liability of his to the government arising in
connection with or as a result of his being an alien, and accruing only during the
interregnum between application and approval, a situation that is not present in the instant
case.
And it is but right and just that the mandate of the people, already twice frustrated, should
now prevail. Under the circumstances, there is nothing unjust or iniquitous in treating
Frivaldo's repatriation as having become effective as of the date of his application, i.e., on
August 17, 1994. This being so, all questions about his possession of the nationality
qualification -- whether at the date of proclamation (June 30, 1995) or the date of election
(May 8, 1995) or date of filing his certificate of candidacy (March 20, 1995) would become
moot.
Based on the foregoing, any question regarding Frivaldo's status as a registered voter
would also be deemed settled. Inasmuch as he is considered as having been repatriated -
- i.e., his Filipino citizenship restored -- as of August 17, 1994, his previous registration as a
voter is likewise deemed validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an American. Would the
retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40
of the Local Government Code would disqualify him "from running for any elective local
position?"49 We answer this question in the negative, as there is cogent reason to hold that
Frivaldo was really STATELESS at the time he took said oath of allegiance and even before
that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long
renounced and had long abandoned his American citizenship -- long before May 8, 1995. At
best, Frivaldo was stateless in the interim -- when he abandoned and renounced his US
citizenship but before he was repatriated to his Filipino citizenship." 50
On this point, we quote from the assailed Resolution dated December 19, 1995: 51
By the laws of the United States, petitioner Frivaldo lost his American
citizenship when he took his oath of allegiance to the Philippine
Government when he ran for Governor in 1988, in 1992, and in 1995.
Every certificate of candidacy contains an oath of allegiance to the
Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long before the elections
of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings
of the Commission are conclusive upon this Court, absent any showing of capriciousness or
arbitrariness or
abuse.52
The Second Issue: Is Lack of Citizenship
a Continuing Disqualification?
Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second Division in SPA
No. 95-028 as affirmed in toto by Comelec En Banc in its Resolution of May 11, 1995
"became final and executory after five (5) days or on May 17, 1995, no restraining order
having been issued by this Honorable Court.54 Hence, before Lee "was proclaimed as the
elected governor on June 30, 1995, there was already a final and executory judgment
disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo now concedes
were legally "correct") declaring Frivaldo an alien have also become final and executory way
before the 1995 elections, and these "judicial pronouncements of his political status as an
American citizen absolutely and for all time disqualified (him) from running for, and holding
any public office in the Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered
in connection with the 1988 elections while that in G.R. No. 104654 was in connection with
the 1992 elections. That he was disqualified for such elections is final and can no longer be
changed. In the words of the respondent Commission (Second Division) in its assailed
Resolution:55
The records show that the Honorable Supreme Court had decided that
Frivaldo was not a Filipino citizen and thus disqualified for the purpose of
the 1988 and 1992 elections. However, there is no record of any "final
judgment" of the disqualification of Frivaldo as a candidate for the May 8,
1995 elections. What the Commission said in its Order of June 21, 1995
(implemented on June 30, 1995), directing the proclamation of Raul R.
Lee, was that Frivaldo was not a Filipino citizen "having been declared by
the Supreme Court in its Order dated March 25, 1995, not a citizen of the
Philippines." This declaration of the Supreme Court, however, was in
connection with the 1992 elections.
Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's
future status with finality. This is because a person may subsequently reacquire, or for that
matter lose, his citizenship under any of the modes recognized by law for the purpose.
Hence, in Lee vs. Commissioner of Immigration,56 we held:
Everytime the citizenship of a person is material or indispensable in a
judicial or administrative case, whatever the corresponding court or
administrative authority decides therein as to such citizenship is generally
not considered res judicata, hence it has to be threshed out again and
again, as the occasion demands.
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC
No. 95-317 because the only "possible types of proceedings that may be entertained by the
Comelec are a pre-proclamation case, an election protest or a quo warranto case". Again,
Lee reminds us that he was proclaimed on June 30, 1995 but that Frivaldo filed SPC No.
95-317 questioning his (Lee's) proclamation only on July 6, 1995 -- "beyond the 5-day
reglementary period." Hence, according to him, Frivaldo's "recourse was to file either an
election protest or a quo warranto action."
This argument is not meritorious. The Constitution57 has given the Comelec ample power to
"exercise exclusive original jurisdiction over all contests relating to the elections, returns and
qualifications of all elective . . . provincial . . . officials." Instead of dwelling at length on the
various petitions that Comelec, in the exercise of its constitutional prerogatives, may
entertain, suffice it to say that this Court has invariably recognized the Commission's
authority to hear and decide petitions for annulment of proclamations -- of which SPC No.
95-317 obviously is one.58 Thus, in Mentang vs. COMELEC,59 we ruled:
The petitioner argues that after proclamation and assumption of office, a
pre-proclamation controversy is no longer viable. Indeed, we are aware of
cases holding that pre-proclamation controversies may no longer be
entertained by the COMELEC after the winning candidate has been
proclaimed. (citing Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs.
COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171 SCRA 468.)
This rule, however, is premised on an assumption that the proclamation is
no proclamation at all and the proclaimed candidate's assumption of office
cannot deprive the COMELEC of the power to make such declaration of
nullity. (citing Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs.
COMELEC, 186 SCRA 484.)
The Court however cautioned that such power to annul a proclamation must "be done within
ten (10) days following the proclamation." Inasmuch as Frivaldo's petition was filed only six
(6) days after Lee's proclamation, there is no question that the Comelec correctly acquired
jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid?
Frivaldo assails the validity of the Lee proclamation. We uphold him for the following
reasons:
First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains that he (Lee) was
not the choice of the sovereign will," and in Aquino vs. COMELEC,61 Lee is "a second
placer, . . . just that, a second placer."
In spite of this, Lee anchors his claim to the governorship on the pronouncement of this
Court in the aforesaid Labo62 case, as follows:
The rule would have been different if the electorate fully aware in fact and
in law of a candidate's disqualification so as to bring such awareness
within the realm of notoriety, would nonetheless cast their votes in favor of
the ineligible candidate. In such case, the electorate may be said to have
waived the validity and efficacy of their votes by notoriously misapplying
their franchise or throwing away their votes, in which case, the eligible
candidate obtaining the next higher number of votes may be deemed
elected.
But such holding is qualified by the next paragraph, thus:
But this is not the situation obtaining in the instant dispute. It has not been
shown, and none was alleged, that petitioner Labo was notoriously known
as an ineligible candidate, much less the electorate as having known of
such fact. On the contrary, petitioner Labo was even allowed by no less
than the Comelec itself in its resolution dated May 10, 1992 to be voted
for the office of the city Payor as its resolution dated May 9, 1992 denying
due course to petitioner Labo's certificate of candidacy had not yet
become final and subject to the final outcome of this case.
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this
case because Frivaldo was in 1995 in an identical situation as Labo was in 1992 when the
Comelec's cancellation of his certificate of candidacy was not yet final on election day as
there was in both cases a pending motion for reconsideration, for which reason Comelec
issued an (omnibus) resolution declaring that Frivaldo (like Labo in 1992) and several others
can still be voted for in the May 8, 1995 election, as in fact, he was.
Furthermore, there has been no sufficient evidence presented to show that the electorate of
Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged disqualification as to
"bring such awareness within the realm of notoriety;" in other words, that the voters
intentionally wasted their ballots knowing that, in spite of their voting for him, he was
ineligible. If Labo has any relevance at all, it is that the vice-governor -- and not Lee --
should be pro- claimed, since in losing the election, Lee was, to paraphrase Labo again,
"obviously not the choice of the people" of Sorsogon. This is the emphatic teaching of Labo:
The rule, therefore, is: the ineligibility of a candidate receiving majority
votes does not entitle the eligible candidate receiving the next highest
 number of votes to be declared elected. A minority or defeated candidate
cannot be deemed elected to the office.
Second. As we have earlier declared Frivaldo to have seasonably reacquired his citizenship
and inasmuch as he obtained the highest number of votes in the 1995 elections, he -- not
Lee -- should be proclaimed. Hence, Lee's proclamation was patently erroneous and should
now be corrected.
The Fifth Issue: Is Section 78 of the
Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second
Division) dated May 1, 1995 and the confirmatory en banc Resolution of May 11, 1995
disqualifying him for want of citizenship should be annulled because they were rendered
beyond the fifteen (15) day period prescribed by Section 78, of the Omnibus Election Code
which reads as follows:
Sec. 78. Petition to deny due course or to cancel a certificate of
candidacy. -- A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the
ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided after notice and hearing, not later than
fifteen days before the election. (Emphasis supplied.)
This claim is now moot and academic inasmuch as these resolutions are deemed
superseded by the subsequent ones issued by the Commission (First Division) on
December 19, 1995, affirmed en banc63 on February 23, 1996; which both upheld his
election. At any rate, it is obvious that Section 78 is merely directory as Section 6 of R.A.
No. 6646 authorizes the Commission to try and decide petitions for disqualifications even
after the elections, thus:
Sec. 6. Effect of Disqualification Case. -- Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted. If for any reason a candidate
is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is
strong. (emphasis supplied)
Refutation of
Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that
President Aquino's memorandum dated March 27, 1987 should be viewed as a suspension
(not a repeal, as urged by Lee) of P.D. 725. But whether it decrees a suspension or a repeal
is a purely academic distinction because the said issuance is not a statute that can amend
or abrogate an existing law.
The existence and subsistence of P.D. 725 were recognized in the first Frivaldo case; 64 viz.,
"(u)nder CA No. 63 as amended by CA No. 473 and P.D. No. 725, Philippine citizenship
maybe reacquired by . . . repatriation". He also contends that by allowing Frivaldo to register
and to remain as a registered voter, the Comelec and in effect this Court abetted a
"mockery" of our two previous judgments declaring him a non-citizen. We do not see such
abetting or mockery. The retroactivity of his repatriation, as discussed earlier, legally cured
whatever defects there may have been in his registration as a voter for the purpose of the
1995 elections. Such retroactivity did not change his disqualifications in 1988 and 1992,
which were the subjects of such previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the
ineligibility of a candidate, citing the Comelec's authority under Section 78 of the Omnibus
Election Code allowing the denial of a certificate of candidacy on the ground of a false
material representation therein as required by Section 74. Citing Loong, he then states his
disagreement with our holding that Section 78 is merely directory. We really have no
quarrel. Our point is that Frivaldo was in error in his claim in G.R. No. 120295 that the
Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid because
they were issued "not later than fifteen days before the election" as prescribed by Section
78. In dismissing the petition in G.R. No. 120295, we hold that the Comelec did not commit
grave abuse of discretion because "Section 6 of R.A. 6646 authorizes the Comelec to try
and decide disqualifications even after the elections." In spite of his disagreement with us on
this point, i.e., that Section 78 "is merely directory", we note that just like us, Mr. Justice
Davide nonetheless votes to "DISMISS G.R. No. 120295". One other point. Loong, as
quoted in the dissent, teaches that a petition to deny due course under Section 78 must
be filed within the 25-day period prescribed therein. The present case however deals with
the period during which the Comelec may decide such petition. And we hold that it may be
decided even after the fifteen day period mentioned in Section 78. Here, we rule that a
decision promulgated by the Comelec even after the elections is valid but Loong held that a
petition filed beyond the 25-day period is out of time. There is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual
circumstances of Frivaldo, repatriation may be given retroactive effect. He argues that such
retroactivity "dilutes" our holding in the first Frivaldo case. But the first (and even the second
Frivaldo) decision did not directly involve repatriation as a mode of acquiring citizenship. If
we may repeat, there is no question that Frivaldo was not a Filipino for purposes of
determining his qualifications in the 1988 and 1992 elections. That is settled. But his
supervening repatriation has changed his political status -- not in 1988 or 1992, but only in
the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless prior to his
repatriation, saying that "informal renunciation or abandonment is not a ground to lose
American citizenship". Since our courts are charged only with the duty of determining who
are Philippine nationals, we cannot rule on the legal question of who are or who are not
Americans. It is basic in international law that a State determines ONLY those who are its
own citizens -- not who are the citizens of other countries. 65 The issue here is: the Comelec
made a finding of fact that Frivaldo was stateless and such finding has not been shown by
Lee to be arbitrary or whimsical. Thus, following settled case law, such finding is binding
and final.
The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all
three previous elections, should be declared winner because "Frivaldo's ineligibility for being
an American was publicly known". First, there is absolutely no empirical evidence for such
"public" knowledge. Second, even if there is, such knowledge can be truepost facto only of
the last two previous elections. Third, even the Comelec and now this Court were/are still
deliberating on his nationality before, during and after the 1995 elections. How then can
there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the
qualifications of electivelocal officials, i.e., candidates, and not elected officials, and that the
citizenship qualification [under par. (a) of that section] must be possessed by candidates,
not merely at the commencement of the term, but by election day at the latest. We see it
differently. Section 39, par. (a) thereof speaks of "elective local official" while par. (b) to (f)
refer to "candidates". If the qualifications under par. (a) were intended to apply to
"candidates" and not elected officials, the legislature would have said so, instead of
differentiating par. (a) from the rest of the paragraphs. Secondly, if Congress had meant that
the citizenship qualification should be possessed at election day or prior thereto, it would
have specifically stated such detail, the same way it did in pars. (b) to (f) far other
qualifications of candidates for governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on
the ground, among others, that the law specifically provides that it is only after taking the
oath of allegiance that applicants shall be deemed to have reacquired Philippine citizenship.
We do not question what the provision states. We hold however that the provision should be
understood thus: that after taking the oath of allegiance the applicant is deemed to have
reacquired Philippine citizenship, which reacquisition (or repatriation) is deemed for all
purposes and intents to have retroacted to the date of his application therefor.
In any event, our "so too" argument regarding the literal meaning of the word "elective" in
reference to Section 39 of the Local Authority Code, as well as regarding Mr. Justice
Davide's thesis that the very wordings of P.D. 725 suggest non-retroactivity, were already
taken up rather extensively earlier in this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold
the Rule of Law." We agree -- we must all follow the rule of law. But that is NOT the issue
here. The issue is how should the law be interpreted and applied in this case so it can be
followed, so it can rule!
At balance, the question really boils down to a choice of philosophy and perception of how
to interpret and apply laws relating to elections: literal or liberal; the letter or the spirit, the
naked provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or
in the context of social conditions; harshly against or gently in favor of the voters' obvious
choice. In applying election laws, it would be far better to err in favor of popular sovereignty
than to be right in complex but little understood legalisms. Indeed, to inflict a thrice rejected
candidate upon the electorate of Sorsogon would constitute unmitigated judicial tyranny and
an unacceptable assault upon this Court's conscience.
EPILOGUE
In sum, we rule that the citizenship requirement in the Local Government Code is to be
possessed by an elective official at the latest as of the time he is proclaimed and at the start
of the term of office to which he has been elected. We further hold P.D. No. 725 to be in full
force and effect up to the present, not having been suspended or repealed expressly nor
impliedly at any time, and Frivaldo's repatriation by virtue thereof to have been properly
granted and thus valid and effective. Moreover, by reason of the remedial or curative nature
of the law granting him a new right to resume his political status and the legislative intent
behind it, as well as his unique situation of having been forced to give up his citizenship and
political aspiration as his means of escaping a regime he abhorred, his repatriation is to be
given retroactive effect as of the date of his application therefor, during the pendency of
which he was stateless, he having given up his U.S. nationality. Thus, in contemplation of
law, he possessed the vital requirement of Filipino citizenship as of the start of the term of
office of governor, and should have been proclaimed instead of Lee. Furthermore, since his
reacquisition of citizenship retroacted to August 17, 1994, his registration as a voter of
Sorsogon is deemed to have been validated as of said date as well. The foregoing, of
course, are precisely consistent with our holding that lack of the citizenship requirement is
not a continuing disability or disqualification to run for and hold public office. And once
again, we emphasize herein our previous rulings recognizing the Comelec's authority and
jurisdiction to hear and decide petitions for annulment of proclamations.
This Court has time and again liberally and equitably construed the electoral laws of our
country to give fullest effect to the manifest will of our people,66 for in case of doubt, political
laws must be interpreted to give life and spirit to the popular mandate freely expressed
through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the
way of the sovereign will. Consistently, we have held:
. . . (L)aws governing election contests must be liberally construed to the
end that the will of the people in the choice of public officials may not be
defeated by mere technical objections (citations omitted). 67
The law and the courts must accord Frivaldo every possible protection, defense and refuge,
in deference to the popular will. Indeed, this Court has repeatedly stressed the importance
of giving effect to the sovereign will in order to ensure the survival of our democracy. In any
action involving the possibility of a reversal of the popular electoral choice, this Court must
exert utmost effort to resolve the issues in a manner that would give effect to the will of the
majority, for it is merely sound public policy to cause elective offices to be filled by those
who are the choice of the majority. To successfully challenge a winning candidate's
qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently
antagonistic68 to constitutional and legal principles that overriding such ineligibility and
thereby giving effect to the apparent will of the people, would ultimately create greater
prejudice to the very democratic institutions and juristic traditions that our Constitution and
laws so zealously protect and promote. In this undertaking, Lee has miserably failed.
In Frivaldo's case. it would have been technically easy to find fault with his cause. The Court
could have refused to grant retroactivity to the effects of his repatriation and hold him still
ineligible due to his failure to show his citizenship at the time he registered as a voter before
the 1995 elections. Or, it could have disputed the factual findings of the Comelec that he
was stateless at the time of repatriation and thus hold his consequent dual citizenship as a
disqualification "from running for any elective local position." But the real essence of justice
does not emanate from quibblings over patchwork legal technicality. It proceeds from the
spirit's gut consciousness of the dynamic role of law as a brick in the ultimate development
of the social edifice. Thus, the Court struggled against and eschewed the easy, legalistic,
technical and sometimes harsh anachronisms of the law in order to evoke substantial justice
in the larger social context consistent with Frivaldo's unique situation approximating
venerability in Philippine political life. Concededly, he sought American citizenship only to
escape the clutches of the dictatorship. At this stage, we cannot seriously entertain any
doubt about his loyalty and dedication to this country. At the first opportunity, he returned to
this land, and sought to serve his people once more. The people of Sorsogon
overwhelmingly voted for him three times. He took an oath of allegiance to this Republic
every time he filed his certificate of candidacy and during his failed naturalization bid. And
let it not be overlooked, his demonstrated tenacity and sheer determination to re-assume his
nationality of birth despite several legal set-backs speak more loudly, in spirit, in fact and in
truth than any legal technicality, of his consuming intention and burning desire to re-
embrace his native Philippines even now at the ripe old age of 81 years. Such loyalty to and
love of country as well as nobility of purpose cannot be lost on this Court of justice and
equity. Mortals of lesser mettle would have given up. After all, Frivaldo was assured of a life
of ease and plenty as a citizen of the most powerful country in the world. But he opted, nay,
single-mindedly insisted on returning to and serving once more his struggling but beloved
land of birth. He therefore deserves every liberal interpretation of the law which can be
applied in his favor. And in the final analysis, over and above Frivaldo himself, the
indomitable people of Sorsogon most certainly deserve to be governed by a leader of their
overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the
respondent Commission are AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In
any event, it has no merit.
No costs.
SO ORDERED.
Padilla, Regalado, Romero, Bellosillo, Francisco, Hermosisima, Jr. and Torres, Jr., JJ.,
concur.
Melo, Vitug and Kapunan, JJ., concurs in the result.
Narvasa, C.J. and Mendoza, J., took no part.
Separate Opinions
PUNO, J., concurring:
I concur with the path-breaking ponencia of Mr. Justice Panganiban which is pro-people and
pierces the myopia of legalism. Upholding the sovereign will of the people which is the be-all
and the end-all of republicanism, it rests on a foundation that will endure time and its
tempest.
The sovereignty of our people is the primary postulate of the 1987 Constitution. For this
reason, it appears as thefirst in our declaration of principles and state policies. Thus, section
1 of Article II of our fundamental law proclaims that "[t]he Philippines is a democratic and
republican State. Sovereignty resides in the people and all government authority emanates
from them." The same principle served as the bedrock of our 1973 and 1935
Constitutions.1 It is one of the few principles whose truth has been cherished by the
Americans as self-evident. Section 4, Article IV of the U.S. Constitution makes it a duty of
the Federal government to guarantee to every state a "republican form of government." With
understandable fervor, the American authorities imposed republicanism as the cornerstone
of our 1935 Constitution then being crafted by its Filipino framers.2
Borne out of the 1986 people power EDSA revolution, our 1987 Constitution is more people-
oriented. Thus, section 4 of Article II provides as a state policy that the prime duty of the
Government is "to serve and protect the people." Section 1, Article XI also provides that ". . .
public officers . . . must at all times be accountable to the people . . ." Sections 15 and 1 of
Article XIII define the role and rights of people's organizations. Section 5(2) of Article XVI
mandates that "[t]he state shall strengthen the patriotic spirit and nationalist consciousness
of the military, and respect for people's rights in the performance of their duty." And section
2 of Article XVII provides that "amendments to
this Constitution may likewise be directly proposed by the people through initiative . . ." All
these provisions and more are intended to breathe more life to the sovereignty of our
people.
To be sure, the sovereignty of our people is not a kabalistic principle whose dimensions are
buried in mysticism. Its metes and bounds are familiar to the framers of our Constitutions.
They knew that in its broadest sense, sovereignty is meant to be supreme, the jus summi
imperu, the absolute right to govern.3 Former Dean Vicente Sinco4 states that an essential
quality of sovereignty is legal omnipotence, viz.: "Legal theory establishes certain essential
qualities inherent in the nature of sovereignty. The first is legal omnipotence. This means
that the sovereign is legally omnipotent and absolute in relation to other legal institutions. It
has the power to determine exclusively its legal competence. Its powers are original, not
derivative. It is the sole judge of what it should do at any given time."5Citing Barker,6 he
adds that a more amplified definition of sovereignty is that of "a final power of final legal
adjustment of all legal issues." The U.S. Supreme Court expressed the same thought in the
landmark case of Yick Wo v. Hopkins,7 where it held that ". . . sovereignty itself is, of course,
not subject to law, for it is the author and source of law; but in our system, while sovereign
powers are delegated to the agencies of government, sovereignty itself remains with the
people, by whom and for whom all government exists and acts."
In our Constitution, the people established a representative democracy as distinguished
from a pure democracy. Justice Isagani Cruz explains:8
xxx xxx xxx
A republic is a representative government, a government run by and for
the people. It is not a pure democracy where the people govern
themselves directly. The essence of republicanism is representation and
renovation, the selection by the citizenry of a corps of public functionaries
who derive their mandate from the people and act on their behalf, serving
for a limited period only, after which they are replaced or retained, at the
option of their principal. Obviously, a republican government is a
responsible government whose officials hold and discharge their position
as a public trust and shall, according to the Constitution, "at all times be
accountable to the people" they are sworn to serve. The purpose of a
republican government it is almost needless to state, is the promotion of
the common welfare according to the will of the people themselves.
I appreciate the vigorous dissent of Mr. Justice Davide. I agree that sovereignty
is indivisible but it need not always be exercised by the people together, all the time.9 For
this reason, the Constitution and our laws provide when the entire electorate or only some
of them can elect those who make our laws and those who execute our laws. Thus, the
entire electorate votes for our senators but only our district electorates vote for our
congressmen, only our provincial electorates vote for the members of our provincial boards,
only our city electorates vote for our city councilors, and only our municipal electorates vote
for our councilors. Also, the entire electorate votes for our President and Vice-President but
only our provincial electorates vote for our governors, only our city electorates vote for our
mayors, and only our municipal electorates vote for our mayors. By defining and delimiting
the classes of voters who can exercise the sovereignty of the people in a given election, it
cannot be claimed that said sovereignty has been fragmented.
It is my respectful submission that the issue in the case at bar is not whether the people of
Sorsogon should be given the right to defy the law by allowing Frivaldo to sit as their
governor. Rather, the issue is: whether the will of the voters of Sorsogon clearly choosing
Frivaldo as governor ought to be given a decisive value considering the uncertainty of the
law on when a candidate ought to satisfy the qualification of citizenship. The uncertainty of
law and jurisprudence, both here and abroad, on this legal issue cannot be denied. In the
United States, 10 there are two (2) principal schools of thought on the matter. One espouses
the view that a candidate must possess the qualifications for office at the time of his
election. The other ventures the view that the candidate should satisfy the qualifications at
the time he assumes the powers of the office. I am unaware of any Philippine decision that
has squarely resolved this difficult question of law. The ponencia of Mr. Justice Panganiban
adhered to the second school of thought while Mr. Justice Davide dissents.
I emphasize the honest-to-goodness difference in interpreting our law on the matter for this
is vital to dispel the fear of Mr. Justice Davide that my opinion can bring about ill effects to
the State. Mr. Justice Davide's fear is based on the assumption that Frivaldo continues to be
disqualified and we cannot allow him to sit as governor without transgressing the law. I do
not concede this assumption for as stressed above, courts have been sharply divided by
this mind boggling issue. Given this schism, I do not see how we can derogate on the
sovereignty of the people by according more weight to the votes of the people of Sorsogon.
Mr. Justice Davide warns that should the people of Batanes stage a rebellion, we cannot
prosecute them "because of the doctrine of people's sovereignty." With due respect, the
analogy is not appropriate. In his hypothetical case, rebellion is concededly a crime, a
violation of Article 134 of the Revised Penal Code, an offense against the sovereignty of our
people. In the case at bar, it cannot be held with certitude that the people of Sorsogon
violated the law by voting for Frivaldo as governor. Frivaldo's name was in the list of
candidates allowed by COMELEC to run for governor. At that time too, Frivaldo was taking
all steps to establish his Filipino citizenship. And even our jurisprudence has not settled the
issue when a candidate should possess the qualification of citizenship. Since the meaning
of the law is arguable then and now, I cannot imagine how it will be disastrous for the State
if we tilt the balance in the case at bar in favor of the people of Sorsogon.
In sum, I respectfully submit that the sovereign will of our people should be resolutory of the
case at bar which is one of its kind, unprecedented in our political history. For three (3)
times, Frivaldo ran as governor of the province of Sorsogon. For two (2) times, he was
disqualified on the ground of citizenship. The people of Sorsogon voted for him as their
governor despite his disqualification. The people never waffled in their support for Frivaldo.
In 1988, they gave him a winning margin of 27,000; in 1992, they gave him a winning
spread of 57,000; in 1995, he posted a margin of 20,000. Clearly then, Frivaldo is the
overwhelming choice of the people of Sorsogon. In election cases, we should strive to align
the will of the legislature as expressed in its law with the will of the sovereign people as
expressed in their ballots. For law to reign, it must respect the will of the people. For in the
eloquent prose of Mr. Justice Laurel, ". . . an enfranchised citizen is a particle of popular
sovereignty and is the ultimate source of established authority." 11 The choice of the
governed on who shall be their governor merits the highest consideration by all agencies of
government. In cases where the sovereignty of the people is at stake, we must not only be
legally right but also politically correct. We cannot fail by making the people succeed.
DAVIDE, JR., J., dissenting:
After deliberating on the re-formulated issues and the conclusions reached by my
distinguished colleague, Mr. Justice Artemio V. Panganiban, I find myself unable to join him.
I
I agree with petitioner Lee that Frivaldo's repatriation was void, but not on the ground that
President Corazon C. Aquino's 27 March 1987 memorandum "effectively repealed" P.D. No.
725. In my view, the said memorandum only suspended the implementation of the latter
decree by divesting the Special Committee on Naturalization of its authority to further act on
grants of citizenship under LOI No. 270, as amended, P.D. No. 836, as amended; P.D. No.
1379; and "any other related laws, orders, issuances and rules and regulations." A reading
of the last paragraph of the memorandum can lead to no other conclusion, thus:
In view of the foregoing, you as Chairman and members of the Special
Committee on Naturalization, are hereby directed to cease and desist
from undertaking any and all proceedings within your functional area of
responsibility, as defined in Letter of Instruction No. 270 dated April 11,
1975, as amended, Presidential Decree No. 836 dated December 3,
1975, as amended, and Presidential Decree No. 1379 dated May 17,
1978, relative to the grant of citizenship under the said laws, and any
other related laws, orders, issuances and rules and regulations.
(emphasis supplied)
It is self-evident that the underscored clause can only refer to those related to LOI No. 270,
P.D. No. 836, and P.D. No. 1379. There is no doubt in my mind that P.D. No. 725 is one
such "related law" as it involves the reacquisition of Philippine citizenship by repatriation
and designates the Special Committee on Naturalization created under LOI No. 270 to
receive and act on (i.e., approve or disapprove) applications under the said decree. The
power of President Aquino to suspend these issuances by virtue of the 27 March 1987
memorandum is beyond question considering that under Section 6, Article XVIII of the 1987
Constitution, she exercised legislative power until the Congress established therein
convened on the fourth Monday of July 1987.
I disagree with the view expressed in the ponencia that the memorandum of 27 March 1987
was merely a declaration of "executive policy," and not an exercise of legislative power. LOI
No. 270, P.D. No. 836, P.D. No. 1379 and "any other related laws," such as P.D. No. 725,
were issued by President Ferdinand E. Marcos in the exercise of his legislative powers --
not executive power. These laws relate to the acquisition (by naturalization) and
reacquisition (by repatriation) of Philippine citizenship, and in light of Sections 1(4) and 3,
Article IV of the 1987 Constitution (naturalization and reacquisition of Philippine citizenship
shall be in accordance with law), it is indubitable that these subjects are a matter of
legislative prerogative. In the same vein, the creation of the Special Committee on
Naturalization by LOI No. 270 and the conferment of the power to accept and act on
applications under P.D. No. 725 are clearly legislative acts.
Accordingly, the revocation of the cease and desist order and the reactivation or revival of
the Committee can be done only by legislative fiat, i.e., by Congress, since the President
had long lost his authority to exercise "legislative power." Considering that Congress has
not seen it fit to do so, the President cannot, in the exercise of executive power, lift the
cease and desist order nor reactivate/reconstitute/revive the Committee. A multo fortiori, the
Committee cannot validly accept Frivaldo's application for repatriation and approve it.
II
Even assuming arguendo that Frivaldo's repatriation is valid, it did not "cure his lack of
citizenship." I depart from the view in the ponencia that Section 39 of the Local Government
Code of 1991 does not specify the time when the citizenship requirement must be met, and
that being the case, then it suffices that citizenship be possessed upon commencement of
the term of the office involved; therefore, since Frivaldo "re-assumed" his Philippine
citizenship at 2:00 p.m. on 30 June 1995 and the term of office of Governor commenced at
12:00 noon of that day, he had, therefore, complied with the citizenship requirement.
In the first place, Section 39 actually prescribes the qualifications of elective local officials
and not those of an elected local official. These adjectives are not synonymous, as
the ponencia seems to suggest. The first refers to the nature of the office, which requires
the process of voting by the electorate involved; while the second refers to a victorious
candidate for an elective office. The section unquestionably refers to elective -- not elected -
- local officials. It falls under Title Two entitled ELECTIVE OFFICIALS; under Chapter 1
entitled Qualifications and Election; and paragraph (a) thereof begins with the phrase
"An elective local official," while paragraphs (b) to (f) thereof speak of candidates. It reads
as follows:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of
the Philippines; a registered voter in the barangay, municipality, city, or
province or, in the case of a member of the sangguniang panlalawigan,
sangguniang panlungsod, or sangguniang bayan, the district where he
intends to be elected; a resident therein for at least one (1) year
immediately preceding the day of the election; and able to read and write
Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice governor or member of
the sangguniang panlalawigan, or mayor, vice mayor or member of the
sangguniang panlungsod of highly urbanized cities must be at least
twenty-three (23) years of age on election day.
(c) Candidates for the position of mayor or vice mayor of independent
component cities, component cities, or municipalities must be at least
twenty-one (21) years of age on election day.
(d) Candidates for the position of member of the sangguniang panlungsod
or sangguniang bayan must be at least eighteen (18) years of age on
election day.
(e) Candidates for the position of punong barangay or member of the
sangguniang barangay must be at least eighteen (18) years of age on
election day.
(f) Candidates for the sangguniang kabataan must be at least fifteen (15)
years of age but not more than twenty-one (21) years of age on election
day (emphasis supplied)
It is thus obvious that Section 39 refers to no other than the qualifications of
candidates for elective local offices and their election. Hence, in no way may the
section be construed to mean that possession of qualifications should be reckoned
from the commencement of the term of office of the elected candidate.
For another, it is not at all true that Section 39 does not specify the time when the
citizenship requirement must be possessed. I submit that the requirement must be satisfied,
or that Philippine citizenship must be possessed, not merely at the commencement of the
term, but at an earlier time, the latest being election day itself. Section 39 is not at all
ambiguous nor uncertain that it meant this to be, as one basic qualification of an elective
local official is that he be "A REGISTERED VOTER IN THE BARANGAY, MUNICIPALITY,
CITY OR PROVINCE . . . WHERE HE INTENDS TO VOTE." This simply means that he
possesses all the qualifications to exercise the right of suffrage. The fundamental
qualification for the exercise of this sovereign right is the possession of Philippine
citizenship. No less than the Constitution makes it the first qualification, as Section 1, Article
V thereof provides:
Sec. 1. Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age, and
who shall have resided in the Philippines for at least one year and in the
place wherein they propose to vote for at least six months immediately
preceding the election. . . . (emphasis supplied)
And Section 117 of the Omnibus Election Code of the Philippines (B.P. Blg. 881)
expressly provides for the qualifications of a voter. Thus:
Sec. 117 Qualifications of a voter. -- Every citizen of the Philippines, not
otherwise disqualified by law, eighteen years of age or over, who shall
have resided in the Philippines for one year and in the city or municipality
wherein he proposes to vote for at least six months immediately
preceding the election, may be a registered voter. (emphasis supplied)
It is undisputed that this Court twice voided Frivaldo's election as Governor in the 1988 and
1992 elections on the ground that for lack of Philippine citizenship -- he being a naturalized
citizen of the United States of America -- he was DISQUALIFIED to be elected as such and
to serve the position (Frivaldo vs. Commission on Elections, 174 SCRA 245 [1989];
Republic of the Philippines vs. De la Rosa, 232 SCRA 785 [1994]). This disqualification
inexorably nullified Frivaldo's registration as a voter and declared it void ab initio. Our
judgments therein were self-executory and no further act, e.g., a COMELEC order to cancel
his registration as a voter or the physical destruction of his voter's certificate, was necessary
for the ineffectivity. Thus, he was never considered a registered voter for the elections of
May 1992, and May 1995, as there is no showing that Frivaldo registered anew as a voter
for the latter elections. Even if he did -- in obvious defiance of his decreed disqualification --
this did not make him a Filipino citizen, hence it was equally void ab initio. That he filed his
certificate of candidacy for the 1995 elections and was even allowed to vote therein were of
no moment. Neither act made him a Filipino citizen nor nullified the judgments of this Court.
On the contrary, said acts made a mockery of our judgments. For the Court now to validate
Frivaldo's registration as a voter despite the judgments of disqualification is to modify the
said judgments by making their effectivity and enforceability dependent on a COMELEC
order cancelling his registration as a voter, or on the physical destruction of his certificate of
registration as a voter which, of course, was never our intention. Moreover, to sanction
Frivaldo's registration as a voter would be to sacrifice substance in favor of form (the piece
of paper that is the book of voters or list of voters or voter's ID), and abet the COMELEC's
incompetence in failing to cancel Frivaldo's registration and allowing him to vote.
The second reason in the ponencia as to why the citizenship disqualification should be
reckoned not from the date of the election nor the filing of the certificate of candidacy, but
from the date of proclamation, is that the only available remedy to question the ineligibility
(or disloyalty) of a candidate is a petition for quo warranto which, under Section 253 of the
Omnibus Election Code, may be filed only within ten days from proclamation and not earlier.
I beg to differ.
Clearly, quo warranto is not the sole remedy available to question a candidate's ineligibility
for public office. Section 78 of the Omnibus Election Code allows the filing of a petition to
deny due course to or cancel the certificate of candidacy on the ground that any material
representation contained therein, as required by Section 74, is false. Section 74, in turn,
requires that the person filing the certificate of candidacy must state, inter alia, that he is
eligible for the office, which means that he has all the qualifications (including, of course,
fulfilling the citizenship requirement) and none of the disqualifications as provided by law.
The petition under Section 78 may be filed at any time not later than 25 days from the filing
of the certificate of candidacy. The section reads in full as follows:
Sec. 78. Petition to deny due course to or cancel a certificate of
candidacy. -- A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the
ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later
than fifteen days before the election.
This remedy was recognized in Loong vs. Commission on Elections (216 SCRA
760, 768 [1992]), where this Court held:
Thus, if a person qualified to file a petition to disqualify a certain candidate
fails to file the petition within the 25-day period Section 78 of the Code for
whatever reasons, the election laws do not leave him completely helpless
as he has another chance to raise the disqualification of the candidate by
filing a petition for quo warranto within ten (10) days from the
proclamation of the results of the election, as provided under Section 253
of the Code. Section 1, Rule 21 of the Comelec Rules of Procedure
similarly provides that any voter contesting the election of any regional,
provincial or city official on the ground of ineligibility or of disloyalty to the
Republic of the Philippines may file a petition for quo warranto with the
Electoral Contest Adjudication Department. The petition may be filed
within ten (10) days from the date the respondent is proclaimed (Section
2).
Likewise, Rule 25 of the Revised COMELEC Rules of Procedure allows the filing of a
petition for disqualification on the ground of failure to possess all the qualifications of a
candidate as provided by the Constitution or by existing laws, "any day after the last day for
filing of certificates of candidacy but not later than the date of proclamation." Sections 1 and
3 thereof provide:
Rule 25 -- Disqualification of Candidates
Sec. 1. Grounds for Disqualification. Any candidate who does not possess
all the qualifications of a candidate as provided for by the Constitution or
by existing law or who commits any act declared by law to be grounds for
disqualification may be disqualified from continuing as a candidate.
xxx xxx xxx
Sec. 3. Period to File Petition. The petition shall be filed any day after the
last day for filing of certificates of candidacy but not later than the date of
proclamation.
While the validity of this rule insofar as it concerns petitions for disqualification on
the ground of lack of all qualifications may be doubtful, its invalidity is not in issue
here.
In this connection, it would seem appropriate to take up the last issue grappled within
the ponencia, viz., is Section 78 of the Omnibus Election Code mandatory? The answer is
provided in Loong.
We also do not find merit in the contention of respondent Commission
that in the light of the provisions of Sections 6 and 7 of Rep. Act No. 6646,
a petition to deny due course to or cancel a certificate of candidacy may
be filed even beyond the 25-day period prescribed by Section 78 of the
Code, as long as it is filed within a reasonable time from the discovery of
the ineligibility.
Sections 6 and 7 of Rep. Act No. 6646 are here re-quoted:
Sec. 6. Effect of Disqualification case. Any candidate
who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for
him shall not be counted. If for any reason a candidate
is not declared by final judgment before an election to
be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of
the action, inquiry or protest and, upon motion of the
complainant or any intervenor, may during the
pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence
of his guilt is strong.
Sec. 7. Petition to Deny Due Course To or Cancel a
Certificate of Candidacy. The procedure hereinabove
provided shall apply to petitions to deny due course to
or cancel a certificate of candidacy as provided in
Section 78 of Batas Pambansa Blg. 881.
It will be noted that nothing in Sections 6 or 7 modifies or alters the 25-
day period prescribed by Section 78 of the Code for filing the appropriate
action to cancel a certificate of candidacy on account of any false
representation made therein. On the contrary, said Section 7 affirms and
reiterates Section 78 of the Code.
We note that Section 6 refers only to the effects of a disqualification case
which may be based on grounds other than that provided under Section
78 of the Code. But Section 7 of Rep. Act No. 6646 also makes the
effects referred to in Section 6 applicable to disqualification cases filed
under Section 78 of the Code. Nowhere in Sections 6 and 7 of Rep. Act
No. 6646 is mention made of the period within which these disqualification
cases may be filed. This is because there are provisions in the Code
which supply the periods within which a petition relating to disqualification
of candidates must be filed, such as Section 78, already discussed, and
Section 253 on petitions for quo warranto.
I then disagree with the asseveration in the ponencia that Section 78 is merely directory
because Section 6 of R.A. No. 6646 authorizes the COMELEC to try and decide petitions
for disqualification even after elections. I submit that Section 6 refers to disqualifications
under Sections 12 and 68 of the Omnibus Election Code and consequently modifies Section
72 thereof. As such, the proper court or the COMELEC are granted the authority to continue
hearing the case after the election, and during the pendency of the case, suspend the
proclamation of the victorious candidate, if the evidence against him is strong. Sections 12,
68, and 72 of the Code provide:
Sec. 12. Disqualifications. Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion or for any offense for
which he has been sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary
pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service of sentence, unless within the same period he
again becomes disqualified.
xxx xxx xxx
 Sec. 68. Disqualifications. Any candidate who, in an action or protest in
which he is a party is declared by final decision of a competent court
guilty of, or found by the Commission of having (a) given money or other
material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in
excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and
cc, sub-paragraph 6, shall be disqualified from continuing as a candidate,
or if he has been elected, from holding the office. Any person who is a
permanent resident of or an immigrant to a foreign country shall not be
qualified to run for any elective office under this Code, unless said person
has waived his status as permanent resident or immigrant of a foreign
country in accordance with the residence requirement provided for in the
election laws. (Sec. 25, 1971 EC)
Sec. 72. Effects of disqualification cases and priority. The Commission
and the courts shall give priority to cases of disqualification by reason of
violation of this Act to the end that a final decision shall be rendered not
later than seven days before the election in which the disqualification is
sought.
Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted.
Nevertheless, if for any reason, a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, his violation of the
provisions of the preceding sections shall not prevent his proclamation
and assumption to office.
III
Still assuming that the repatriation is valid, I am not persuaded by the arguments in support
of the thesis that Frivaldo's repatriation may be given retroactive effect, as such goes
against the spirit and letter of P.D. No. 725. The spirit adheres to the principle that
acquisition or re-acquisition of Philippine citizenship is not a right, but a mere privilege.
Before the advent of P.D. No. 725, only the following could apply for repatriation: (a) Army,
Navy, or Air Corps deserters; and (b) a woman who lost her citizenship by reason of her
marriage to an alien after the death of her spouse (Section 2[2], C.A. No. 63). P.D. NO. 725
expanded this to include Filipino women who lost their Philippine citizenship by marriage to
aliens even before the death of their alien husbands, or the termination of their marital
status and to natural-born Filipino citizens who lost their Philippine citizenship but
subsequently desired to reacquire the latter.
Turning now to the letter of the law, P.D. No. 725 expressly provides that repatriation takes
effect only after taking the oath of allegiance to the Republic of the Philippines, thus:
. . . may reacquire Philippine citizenship . . . by applying with the Special
Committee on Naturalization created by Letter of Instruction No. 270, and,
if their applications are approved, taking the necessary oath of allegiance
to the Republic of the Philippines, AFTER WHICH THEY SHALL BE
DEEMED TO HAVE REACQUIRED PHILIPPINE CITIZENSHIP.
(emphasis and capitalization supplied)
Clearly then, the steps to reacquire Philippine citizenship by repatriation under the
decree are: (1) filing the application; (2) action by the committee; and (3) taking of
the oath of allegiance if the application is approved. It is only UPON TAKING THE
OATH OF ALLEGIANCE that the applicant is deemed ipso jure to have reacquired
Philippine citizenship. If the decree had intended the oath taking to retroact to the
date of the filing of the application, then it should not have explicitly provided
otherwise.
This theory in the ponencia likewise dilutes this Court's pronouncement in the
first Frivaldo case that what reacquisition of Filipino citizenship requires is an act "formally
rejecting [the] adopted state and reaffirming . . . allegiance to the Philippines." That act
meant nothing less than taking of the oath of allegiance to the Republic of the Philippines. If
we now take this revision of doctrine to its logical end, then it would also mean that if
Frivaldo had chosen and reacquired Philippine citizenship by naturalization or through
Congressional action, such would retroact to the filing of the petition for naturalization or the
bill granting him Philippine citizenship. This is a proposition which both the first and second
Frivaldo cases soundly rejected.
The other reason adduced in the ponencia in support of the proposition that P.D. No. 725
can be given retroactive effect is its alleged curative or remedial nature.
Again, I disagree. In the first place, by no stretch of legal hermeneutics may P.D. No. 725 be
characterized as a curative or remedial statute:
Curative or remedial statutes are healing acts. They are remedial by
curing defects and adding to the means of enforcing existing obligations.
The rule in regard to curative statutes is that if the thing omitted or failed
to be done, and which constitutes the defect sought to be removed or
made harmless, is something the legislature might have dispensed with
by a previous statute, it may do so by a subsequent one.
Curative statutes are intended to supply defects, abridge superfluities in
existing laws, and curb certain evils. They are intended to enable a
person to carry into effect that which they have designed and intended,
but has failed of expected legal consequence by reason of some statutory
disability or irregularity in their own action. They make valid that which,
before the enactment of the statute, was invalid. (RUBEN E. AGPALO,
Statutory Construction, Second ed. [1990], 270-271, citations omitted).
P.D. No. 725 provides for the reacquisition of Philippine citizenship lost through the
marriage of a Filipina to an alien and through naturalization in a foreign country of natural-
born Filipino citizens. It involves then the substantive, nay primordial, right of citizenship. To
those for whom it is intended, it means, in reality, the acquisition of "a new right," as
the ponencia cannot but concede. Therefore, it may not be said to merely remedy or cure a
defect considering that one who has lost Philippine citizenship does not have the right to
reacquire it. As earlier stated, the Constitution provides that citizenship, once lost, may only
be reacquired in the manner provided by law. Moreover, it has also been observed that:
The idea is implicit from many of the cases that remedial statutes are
statutes relating to procedure and not substantive rights. (Sutherland,
Statutory Construction, Vol. 3, Third ed. [1943], §5704 at 74, citations
omitted).
If we grant for the sake of argument, however, that P.D. No. 725 is curative or remedial
statute, it would be an inexcusable error to give it a retroactive effect since it explicitly
provides the date of its effectivity. Thus:
This Decree shall take effect immediately.
Done in the city of Manila, this 5th day of June, in the year of Our Lord,
nineteen hundred and seventy five.
Nevertheless, if the retroactivity is to relate only to the reacquisition of Philippine citizenship,
then nothing therein supports such theory, for as the decree itself unequivocally provides, it
is only after taking the oath of allegiance to the Republic of the Philippines that the
applicant is DEEMED TO HAVE REACQUIRED PHILIPPINE CITIZENSHIP.
IV
Assuming yet again, for the sake of argument, that taking the oath of allegiance retroacted
to the date of Frivaldo's application for repatriation, the same could not be said insofar as it
concerned the United States of America, of which he was a citizen. For under the laws of
the United States of America, Frivaldo remained an American national until he renounced
his citizenship and allegiance thereto at 2:00 p.m. on 30 June 1995, when he took his oath
of allegiance to the Republic of the Philippines. Section 401 of the Nationality Act of 1940 of
the United States of America provides that a person who is a national of the United States
of America, whether by birth or naturalization, loses his nationality by, inter alia, "(b) Taking
an oath or making an affirmation or other formal declaration of allegiance to a foreign state"
(SIDNEY KANSAS, U.S. Immigration Exclusion and Deportation and Citizenship of the
United States of America, Third ed., [1948] 341-342). It follows then that on election day and
until the hour of the commencement of the term for which he was elected - noon of 30 June
1995 as per Section 43 of the Local Government Code - Frivaldo possessed dual
citizenship, viz., (a) as an American citizen; and (b) as a Filipino citizen through the adoption
of the theory that the effects of his taking the oath of allegiance were retrospective. Hence,
he was disqualified to run for Governor for yet another reason: possession of dual
citizenship, in accordance with Section 40 (d) of the Local Government Code.
V people as one people, one body.
The assertion in the ponencia that Frivaldo may be considered STATELESS on the basis of
his claim that he "had long renounced and had long abandoned his American citizenship -
long before May 8, 1985" - is untenable, for the following reasons: first, it is based on
Frivaldo's unproven, self-serving allegation; second, informal renunciation or abandonment
is not a ground to lose American citizenship; and third, simply put, never did the status of a
STATELESS person attach to Frivaldo.
Statelessness may be either de jure, which is the status of individuals stripped of their
nationality by their former government without having an opportunity to acquire another;
or de facto, which is the status of individuals possessed of a nationality whose country does
not give them protection outside their own country, and who are commonly, albeit
imprecisely, referred to as refugees (JORGE R. COQUIA, et al., Conflict of Laws Cases,
Materials and Comments, 1995 ed., 290).
Specifically, under Chapter 1, Article 1 of the United Nations Convention Regarding the
Status of Stateless Persons (Philippine Treaty Series, Compiled and Annotated by Haydee
B. Yorac, vol. III, 363), a stateless person is defined as "a person who is not considered as
a national by any State under the operation of its law." However, it has not been shown that
the United States of America ever ceased to consider Frivaldo its national at any time
before he took his oath of allegiance to the Republic of the Philippines on 30 June 1995.
VI
Finally, I find it in order to also express my view on the concurring opinion of Mr. Justice
Reynato S. Puno. I am absolutely happy to join him in his statement that "[t]he sovereignty
of our people is the primary postulate of the 1987 Constitution" and that the said
Constitution is "more people-oriented," "borne [as it is] out of the 1986 people power EDSA
revolution." I would even go further by saying that this Constitution is pro-
God (Preamble), pro-people (Article II, Sections 1, 3, 4, 5, 9, 15, 16; Article XI, Section 1,
Article XII, Sections 1, 6; Article XIII, Sections 1, 11, 15, 16, 18; Article XVI, Sections 5(2),
6), pro-Filipino (Article XII, Sections 1, 2, 10, 11, 12, 14; Article XIV, Sections 1, 4(2), 13;
Article XVI, Section 11), pro-poor (Article II, Sections 9, 10, 18, 21; Article XII, Sections 1,
2(3); Article XIII, Sections 1, 3, 4, 5, 6, 7, 9, 10, 11, 13), pro-life (Article II, Section 12),
and pro-family (Article II, Section 12; Article XV).
Nevertheless, I cannot be with him in carrying out the principle of sovereignty beyond what I
perceive to be the reasonable constitutional parameters. The doctrine of people's
sovereignty is founded on the principles of democracy and republicanism and refers
exclusively to the sovereignty of the people of the Philippines. Section 1 of Article II is quite
clear on this, thus:
Sec. 1. The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from them.
And the Preamble makes it clear when it solemnly opens it with a clause "We, the
sovereign Filipino people . . ." Thus, this sovereignty is an attribute of the Filipino
That sovereign power of the Filipino people cannot be fragmentized by looking at it as the
supreme authority of the people of any of the political subdivisions to determine their own
destiny; neither can we convert and treat every fragment as the whole. In such a case, this
Court would provide the formula for the division and destruction of the State and render the
Government ineffective and inutile. To illustrate the evil, we may consider the enforcement
of laws or the pursuit of a national policy by the executive branch of the government, or the
execution of a judgment by the courts. If these are opposed by the overwhelming majority of
the people of a certain province, or even a municipality, it would necessarily follow that the
law, national policy, or judgment must not be enforced, implemented, or executed in the
said province or municipality. More concretely, if, for instance, the vast majority of the
people of Batanes rise publicly and take up arms against the Government for the purpose of
removing from the allegiance to the said Government or its laws, the territory of the
Republic of the Philippines or any part thereof, or any body of land, naval, or other armed
forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their
powers or prerogatives, then those who did so -- and which are composed of the vast
majority of the people of Batanes -- a political subdivision -- cannot be prosecuted for or be
held guilty of rebellion in violation of Article 134 of the Revised Penal Code because of the
doctrine of peoples' sovereignty. Indeed, the expansion of the doctrine of sovereignty by
investing upon the people of a mere political subdivision that which the Constitution places
in the entire Filipino people, may be disastrous to the Nation.
So it is in this case if we follow the thesis in the concurring opinion. Thus, simply because
Frivaldo had obtained a margin of 20,000 votes over his closest rival, Lee, i.e., a vast
majority of the voters of Sorsogon had expressed their sovereign will for the former, then
this Court must yield to that will and must, therefore, allow to be set aside, for Frivaldo, not
just the laws on qualifications of candidates and elective officials and naturalization and
reacquisition of Philippine citizenship, but even the final and binding decisions of this Court
affecting him.
This Court must be the first to uphold the Rule of Law. I vote then to DISMISS G.R. No.
120295 and GRANT G.R. No. 123755.
Separate Opinions
PUNO, J., concurring:
I concur with the path-breaking ponencia of Mr. Justice Panganiban which is pro-people and
pierces the myopia of legalism. Upholding the sovereign will of the people which is the be-all
and the end-all of republicanism, it rests on a foundation that will endure time and its
tempest.
The sovereignty of our people is the primary postulate of the 1987 Constitution. For this
reason, it appears as thefirst in our declaration of principles and state policies. Thus, section
1 of Article II of our fundamental law proclaims that "[t]he Philippines is a democratic and
republican State. Sovereignty resides in the people and all government authority emanates
from them." The same principle served as the bedrock of our 1973 and 1935
Constitutions.1 It is one of the few principles whose truth has been cherished by the
Americans as self-evident. Section 4, Article IV of the U.S. Constitution makes it a duty of
the Federal government to guarantee to every state a "republican form of government." With
understandable fervor, the American authorities imposed republicanism as the cornerstone
of our 1935 Constitution then being crafted by its Filipino framers.2
Borne out of the 1986 people power EDSA revolution, our 1987 Constitution is more people-
oriented. Thus, section 4 of Article II provides as a state policy that the prime duty of the
Government is "to serve and protect the people." Section 1, Article XI also provides that ". . .
public officers . . . must at all times be accountable to the people . . ." Sections 15 and 1 of
Article XIII define the role and rights of people's organizations. Section 5(2) of Article XVI
mandates that "[t]he state shall strengthen the patriotic spirit and nationalist consciousness
of the military, and respect for people's rights in the performance of their duty." And section
2 of Article XVII provides that "amendments to
this Constitution may likewise be directly proposed by the people through initiative . . ." All
these provisions and more are intended to breathe more life to the sovereignty of our
people.
To be sure, the sovereignty of our people is not a kabalistic principle whose dimensions are
buried in mysticism. Its metes and bounds are familiar to the framers of our Constitutions.
They knew that in its broadest sense, sovereignty is meant to be supreme, the jus summi
imperu, the absolute right to govern.3 Former Dean Vicente Sinco4 states that an essential
quality of sovereignty is legal omnipotence, viz.: "Legal theory establishes certain essential
qualities inherent in the nature of sovereignty. The first is legal omnipotence. This means
that the sovereign is legally omnipotent and absolute in relation to other legal institutions. It
has the power to determine exclusively its legal competence. Its powers are original, not
derivative. It is the sole judge of what it should do at any given time."5Citing Barker,6 he
adds that a more amplified definition of sovereignty is that of "a final power of final legal
adjustment of all legal issues." The U.S. Supreme Court expressed the same thought in the
landmark case of Yick Wo v. Hopkins,7 where it held that ". . . sovereignty itself is, of course,
not subject to law, for it is the author and source of law; but in our system, while sovereign
powers are delegated to the agencies of government, sovereignty itself remains with the
people, by whom and for whom all government exists and acts."
In our Constitution, the people established a representative democracy as distinguished
from a pure democracy. Justice Isagani Cruz explains:8
xxx xxx xxx
A republic is a representative government, a government run by and for
the people. It is not a pure democracy where the people govern
themselves directly. The essence of republicanism is representation and
renovation, the selection by the citizenry of a corps of public functionaries
who derive their mandate from the people and act on their behalf, serving
for a limited period only, after which they are replaced or retained, at the
option of their principal. Obviously, a republican government is a
responsible government whose officials hold and discharge their position
as a public trust and shall, according to the Constitution, "at all times be
accountable to the people" they are sworn to serve. The purpose of a
 republican government it is almost needless to state, is the promotion of
the common welfare according to the will of the people themselves.
I appreciate the vigorous dissent of Mr. Justice Davide. I agree that sovereignty
is indivisible but it need not always be exercised by the people together, all the time.9 For
this reason, the Constitution and our laws provide when the entire electorate or only some
of them can elect those who make our laws and those who execute our laws. Thus, the
entire electorate votes for our senators but only our district electorates vote for our
congressmen, only our provincial electorates vote for the members of our provincial boards,
only our city electorates vote for our city councilors, and only our municipal electorates vote
for our councilors. Also, the entire electorate votes for our President and Vice-President but
only our provincial electorates vote for our governors, only our city electorates vote for our
mayors, and only our municipal electorates vote for our mayors. By defining and delimiting
the classes of voters who can exercise the sovereignty of the people in a given election, it
cannot be claimed that said sovereignty has been fragmented.
It is my respectful submission that the issue in the case at bar is not whether the people of
Sorsogon should be given the right to defy the law by allowing Frivaldo to sit as their
governor. Rather, the issue is: whether the will of the voters of Sorsogon clearly choosing
Frivaldo as governor ought to be given a decisive value considering the uncertainty of the
law on when a candidate ought to satisfy the qualification of citizenship. The uncertainty of
law and jurisprudence, both here and abroad, on this legal issue cannot be denied. In the
United States, 10 there are two (2) principal schools of thought on the matter. One espouses
the view that a candidate must possess the qualifications for office at the time of his
election. The other ventures the view that the candidate should satisfy the qualifications at
the time he assumes the powers of the office. I am unaware of any Philippine decision that
has squarely resolved this difficult question of law. The ponencia of Mr. Justice Panganiban
adhered to the second school of thought while Mr. Justice Davide dissents.
I emphasize the honest-to-goodness difference in interpreting our law on the matter for this
is vital to dispel the fear of Mr. Justice Davide that my opinion can bring about ill effects to
the State. Mr. Justice Davide's fear is based on the assumption that Frivaldo continues to be
disqualified and we cannot allow him to sit as governor without transgressing the law. I do
not concede this assumption for as stressed above, courts have been sharply divided by
this mind boggling issue. Given this schism, I do not see how we can derogate on the
sovereignty of the people by according more weight to the votes of the people of Sorsogon.
Mr. Justice Davide warns that should the people of Batanes stage a rebellion, we cannot
prosecute them "because of the doctrine of people's sovereignty." With due respect, the
analogy is not appropriate. In his hypothetical case, rebellion is concededly a crime, a
violation of Article 134 of the Revised Penal Code, an offense against the sovereignty of our
people. In the case at bar, it cannot be held with certitude that the people of Sorsogon
violated the law by voting for Frivaldo as governor. Frivaldo's name was in the list of
candidates allowed by COMELEC to run for governor. At that time too, Frivaldo was taking
all steps to establish his Filipino citizenship. And even our jurisprudence has not settled the
issue when a candidate should possess the qualification of citizenship. Since the meaning
of the law is arguable then and now, I cannot imagine how it will be disastrous for the State
if we tilt the balance in the case at bar in favor of the people of Sorsogon.
In sum, I respectfully submit that the sovereign will of our people should be resolutory of the
case at bar which is one of its kind, unprecedented in our political history. For three (3)
times, Frivaldo ran as governor of the province of Sorsogon. For two (2) times, he was
disqualified on the ground of citizenship. The people of Sorsogon voted for him as their
governor despite his disqualification. The people never waffled in their support for Frivaldo.
In 1988, they gave him a winning margin of 27,000; in 1992, they gave him a winning
spread of 57,000; in 1995, he posted a margin of 20,000. Clearly then, Frivaldo is the
overwhelming choice of the people of Sorsogon. In election cases, we should strive to align
the will of the legislature as expressed in its law with the will of the sovereign people as
expressed in their ballots. For law to reign, it must respect the will of the people. For in the
eloquent prose of Mr. Justice Laurel, ". . . an enfranchised citizen is a particle of popular
sovereignty and is the ultimate source of established authority." 11 The choice of the
governed on who shall be their governor merits the highest consideration by all agencies of
government. In cases where the sovereignty of the people is at stake, we must not only be
legally right but also politically correct. We cannot fail by making the people succeed.
DAVIDE, JR., J., dissenting:
After deliberating on the re-formulated issues and the conclusions reached by my
distinguished colleague, Mr. Justice Artemio V. Panganiban, I find myself unable to join him.
I
I agree with petitioner Lee that Frivaldo's repatriation was void, but not on the ground that
President Corazon C. Aquino's 27 March 1987 memorandum "effectively repealed" P.D. No.
725. In my view, the said memorandum only suspended the implementation of the latter
decree by divesting the Special Committee on Naturalization of its authority to further act on
grants of citizenship under LOI No. 270, as amended, P.D. No. 836, as amended; P.D. No.
1379; and "any other related laws, orders, issuances and rules and regulations." A reading
of the last paragraph of the memorandum can lead to no other conclusion, thus:
In view of the foregoing, you as Chairman and members of the Special
Committee on Naturalization, are hereby directed to cease and desist
from undertaking any and all proceedings within your functional area of
responsibility, as defined in Letter of Instruction No. 270 dated April 11,
1975, as amended, Presidential Decree No. 836 dated December 3,
1975, as amended, and Presidential Decree No. 1379 dated May 17,
1978, relative to the grant of citizenship under the said laws, and any
other related laws, orders, issuances and rules and regulations.
(emphasis supplied)
It is self-evident that the underscored clause can only refer to those related to LOI No. 270,
P.D. No. 836, and P.D. No. 1379. There is no doubt in my mind that P.D. No. 725 is one
such "related law" as it involves the reacquisition of Philippine citizenship by repatriation
and designates the Special Committee on Naturalization created under LOI No. 270 to
receive and act on (i.e., approve or disapprove) applications under the said decree. The
power of President Aquino to suspend these issuances by virtue of the 27 March 1987
memorandum is beyond question considering that under Section 6, Article XVIII of the 1987
Constitution, she exercised legislative power until the Congress established therein
convened on the fourth Monday of July 1987.
I disagree with the view expressed in the ponencia that the memorandum of 27 March 1987
was merely a declaration of "executive policy," and not an exercise of legislative power. LOI
No. 270, P.D. No. 836, P.D. No. 1379 and "any other related laws," such as P.D. No. 725,
were issued by President Ferdinand E. Marcos in the exercise of his legislative powers --
not executive power. These laws relate to the acquisition (by naturalization) and
reacquisition (by repatriation) of Philippine citizenship, and in light of Sections 1(4) and 3,
Article IV of the 1987 Constitution (naturalization and reacquisition of Philippine citizenship
shall be in accordance with law), it is indubitable that these subjects are a matter of
legislative prerogative. In the same vein, the creation of the Special Committee on
Naturalization by LOI No. 270 and the conferment of the power to accept and act on
applications under P.D. No. 725 are clearly legislative acts.
Accordingly, the revocation of the cease and desist order and the reactivation or revival of
the Committee can be done only by legislative fiat, i.e., by Congress, since the President
had long lost his authority to exercise "legislative power." Considering that Congress has
not seen it fit to do so, the President cannot, in the exercise of executive power, lift the
cease and desist order nor reactivate/reconstitute/revive the Committee. A multo fortiori, the
Committee cannot validly accept Frivaldo's application for repatriation and approve it.
II
Even assuming arguendo that Frivaldo's repatriation is valid, it did not "cure his lack of
citizenship." I depart from the view in the ponencia that Section 39 of the Local Government
Code of 1991 does not specify the time when the citizenship requirement must be met, and
that being the case, then it suffices that citizenship be possessed upon commencement of
the term of the office involved; therefore, since Frivaldo "re-assumed" his Philippine
citizenship at 2:00 p.m. on 30 June 1995 and the term of office of Governor commenced at
12:00 noon of that day, he had, therefore, complied with the citizenship requirement.
In the first place, Section 39 actually prescribes the qualifications of elective local officials
and not those of an elected local official. These adjectives are not synonymous, as
the ponencia seems to suggest. The first refers to the nature of the office, which requires
the process of voting by the electorate involved; while the second refers to a victorious
candidate for an elective office. The section unquestionably refers to elective -- not elected -
- local officials. It falls under Title Two entitled ELECTIVE OFFICIALS; under Chapter 1
entitled Qualifications and Election; and paragraph (a) thereof begins with the phrase
"An elective local official," while paragraphs (b) to (f) thereof speak of candidates. It reads
as follows:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of
the Philippines; a registered voter in the barangay, municipality, city, or
province or, in the case of a member of the sangguniang panlalawigan,
sangguniang panlungsod, or sangguniang bayan, the district where he
intends to be elected; a resident therein for at least one (1) year
immediately preceding the day of the election; and able to read and write
Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice governor or member of
the sangguniang panlalawigan, or mayor, vice mayor or member of the
sangguniang panlungsod of highly urbanized cities must be at least
twenty-three (23) years of age on election day.
(c) Candidates for the position of mayor or vice mayor of independent
component cities, component cities, or municipalities must be at least
twenty-one (21) years of age on election day.
(d) Candidates for the position of member of the sangguniang panlungsod
or sangguniang bayan must be at least eighteen (18) years of age on
election day.
(e) Candidates for the position of punong barangay or member of the
sangguniang barangay must be at least eighteen (18) years of age on
election day.
(f) Candidates for the sangguniang kabataan must be at least fifteen (15)
years of age but not more than twenty-one (21) years of age on election
day (emphasis supplied)
It is thus obvious that Section 39 refers to no other than the qualifications of
candidates for elective local offices and their election. Hence, in no way may the
section be construed to mean that possession of qualifications should be reckoned
from the commencement of the term of office of the elected candidate.
For another, it is not at all true that Section 39 does not specify the time when the
citizenship requirement must be possessed. I submit that the requirement must be satisfied,
or that Philippine citizenship must be possessed, not merely at the commencement of the
term, but at an earlier time, the latest being election day itself. Section 39 is not at all
ambiguous nor uncertain that it meant this to be, as one basic qualification of an elective
local official is that he be "A REGISTERED VOTER IN THE BARANGAY, MUNICIPALITY,
CITY OR PROVINCE . . . WHERE HE INTENDS TO VOTE." This simply means that he
possesses all the qualifications to exercise the right of suffrage. The fundamental
qualification for the exercise of this sovereign right is the possession of Philippine
citizenship. No less than the Constitution makes it the first qualification, as Section 1, Article
V thereof provides:
Sec. 1. Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age, and
who shall have resided in the Philippines for at least one year and in the
place wherein they propose to vote for at least six months immediately
preceding the election. . . . (emphasis supplied)
 And Section 117 of the Omnibus Election Code of the Philippines (B.P. Blg. 881)
expressly provides for the qualifications of a voter. Thus:
Sec. 117 Qualifications of a voter. -- Every citizen of the Philippines, not
otherwise disqualified by law, eighteen years of age or over, who shall
have resided in the Philippines for one year and in the city or municipality
wherein he proposes to vote for at least six months immediately
preceding the election, may be a registered voter. (emphasis supplied)
It is undisputed that this Court twice voided Frivaldo's election as Governor in the 1988 and
1992 elections on the ground that for lack of Philippine citizenship -- he being a naturalized
citizen of the United States of America -- he was DISQUALIFIED to be elected as such and
to serve the position (Frivaldo vs. Commission on Elections, 174 SCRA 245 [1989];
Republic of the Philippines vs. De la Rosa, 232 SCRA 785 [1994]). This disqualification
inexorably nullified Frivaldo's registration as a voter and declared it void ab initio. Our
judgments therein were self-executory and no further act, e.g., a COMELEC order to cancel
his registration as a voter or the physical destruction of his voter's certificate, was necessary
for the ineffectivity. Thus, he was never considered a registered voter for the elections of
May 1992, and May 1995, as there is no showing that Frivaldo registered anew as a voter
for the latter elections. Even if he did -- in obvious defiance of his decreed disqualification --
this did not make him a Filipino citizen, hence it was equally void ab initio. That he filed his
certificate of candidacy for the 1995 elections and was even allowed to vote therein were of
no moment. Neither act made him a Filipino citizen nor nullified the judgments of this Court.
On the contrary, said acts made a mockery of our judgments. For the Court now to validate
Frivaldo's registration as a voter despite the judgments of disqualification is to modify the
said judgments by making their effectivity and enforceability dependent on a COMELEC
order cancelling his registration as a voter, or on the physical destruction of his certificate of
registration as a voter which, of course, was never our intention. Moreover, to sanction
Frivaldo's registration as a voter would be to sacrifice substance in favor of form (the piece
of paper that is the book of voters or list of voters or voter's ID), and abet the COMELEC's
incompetence in failing to cancel Frivaldo's registration and allowing him to vote.
The second reason in the ponencia as to why the citizenship disqualification should be
reckoned not from the date of the election nor the filing of the certificate of candidacy, but
from the date of proclamation, is that the only available remedy to question the ineligibility
(or disloyalty) of a candidate is a petition for quo warranto which, under Section 253 of the
Omnibus Election Code, may be filed only within ten days from proclamation and not earlier.
I beg to differ.
Clearly, quo warranto is not the sole remedy available to question a candidate's ineligibility
for public office. Section 78 of the Omnibus Election Code allows the filing of a petition to
deny due course to or cancel the certificate of candidacy on the ground that any material
representation contained therein, as required by Section 74, is false. Section 74, in turn,
requires that the person filing the certificate of candidacy must state, inter alia, that he is
eligible for the office, which means that he has all the qualifications (including, of course,
fulfilling the citizenship requirement) and none of the disqualifications as provided by law.
The petition under Section 78 may be filed at any time not later than 25 days from the filing
of the certificate of candidacy. The section reads in full as follows:
Sec. 78. Petition to deny due course to or cancel a certificate of
candidacy. -- A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the
ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later
than fifteen days before the election.
This remedy was recognized in Loong vs. Commission on Elections (216 SCRA
760, 768 [1992]), where this Court held:
Thus, if a person qualified to file a petition to disqualify a certain candidate
fails to file the petition within the 25-day period Section 78 of the Code for
whatever reasons, the election laws do not leave him completely helpless
as he has another chance to raise the disqualification of the candidate by
filing a petition for quo warranto within ten (10) days from the
proclamation of the results of the election, as provided under Section 253
of the Code. Section 1, Rule 21 of the Comelec Rules of Procedure
similarly provides that any voter contesting the election of any regional,
provincial or city official on the ground of ineligibility or of disloyalty to the
Republic of the Philippines may file a petition for quo warranto with the
Electoral Contest Adjudication Department. The petition may be filed
within ten (10) days from the date the respondent is proclaimed (Section
2).
Likewise, Rule 25 of the Revised COMELEC Rules of Procedure allows the filing of a
petition for disqualification on the ground of failure to possess all the qualifications of a
candidate as provided by the Constitution or by existing laws, "any day after the last day for
filing of certificates of candidacy but not later than the date of proclamation." Sections 1 and
3 thereof provide:
Rule 25 -- Disqualification of Candidates
Sec. 1. Grounds for Disqualification. Any candidate who does not possess
all the qualifications of a candidate as provided for by the Constitution or
by existing law or who commits any act declared by law to be grounds for
disqualification may be disqualified from continuing as a candidate.
xxx xxx xxx
Sec. 3. Period to File Petition. The petition shall be filed any day after the
last day for filing of certificates of candidacy but not later than the date of
proclamation.
 While the validity of this rule insofar as it concerns petitions for disqualification on
the ground of lack of all qualifications may be doubtful, its invalidity is not in issue
here.
In this connection, it would seem appropriate to take up the last issue grappled within
the ponencia, viz., is Section 78 of the Omnibus Election Code mandatory? The answer is
provided in Loong.
We also do not find merit in the contention of respondent Commission
that in the light of the provisions of Sections 6 and 7 of Rep. Act No. 6646,
a petition to deny due course to or cancel a certificate of candidacy may
be filed even beyond the 25-day period prescribed by Section 78 of the
Code, as long as it is filed within a reasonable time from the discovery of
the ineligibility.
Sections 6 and 7 of Rep. Act No. 6646 are here re-quoted:
Sec. 6. Effect of Disqualification case. Any candidate
who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for
him shall not be counted. If for any reason a candidate
is not declared by final judgment before an election to
be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of
the action, inquiry or protest and, upon motion of the
complainant or any intervenor, may during the
pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence
of his guilt is strong.
Sec. 7. Petition to Deny Due Course To or Cancel a
Certificate of Candidacy. The procedure hereinabove
provided shall apply to petitions to deny due course to
or cancel a certificate of candidacy as provided in
Section 78 of Batas Pambansa Blg. 881.
It will be noted that nothing in Sections 6 or 7 modifies or alters the 25-
day period prescribed by Section 78 of the Code for filing the appropriate
action to cancel a certificate of candidacy on account of any false
representation made therein. On the contrary, said Section 7 affirms and
reiterates Section 78 of the Code.
We note that Section 6 refers only to the effects of a disqualification case
which may be based on grounds other than that provided under Section
78 of the Code. But Section 7 of Rep. Act No. 6646 also makes the
effects referred to in Section 6 applicable to disqualification cases filed
under Section 78 of the Code. Nowhere in Sections 6 and 7 of Rep. Act
No. 6646 is mention made of the period within which these disqualification
cases may be filed. This is because there are provisions in the Code
which supply the periods within which a petition relating to disqualification
of candidates must be filed, such as Section 78, already discussed, and
Section 253 on petitions for quo warranto.
I then disagree with the asseveration in the ponencia that Section 78 is merely directory
because Section 6 of R.A. No. 6646 authorizes the COMELEC to try and decide petitions
for disqualification even after elections. I submit that Section 6 refers to disqualifications
under Sections 12 and 68 of the Omnibus Election Code and consequently modifies Section
72 thereof. As such, the proper court or the COMELEC are granted the authority to continue
hearing the case after the election, and during the pendency of the case, suspend the
proclamation of the victorious candidate, if the evidence against him is strong. Sections 12,
68, and 72 of the Code provide:
Sec. 12. Disqualifications. Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion or for any offense for
which he has been sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary
pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service of sentence, unless within the same period he
again becomes disqualified.
xxx xxx xxx
Sec. 68. Disqualifications. Any candidate who, in an action or protest in
which he is a party is declared by final decision of a competent court
guilty of, or found by the Commission of having (a) given money or other
material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in
excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and
cc, sub-paragraph 6, shall be disqualified from continuing as a candidate,
or if he has been elected, from holding the office. Any person who is a
permanent resident of or an immigrant to a foreign country shall not be
qualified to run for any elective office under this Code, unless said person
has waived his status as permanent resident or immigrant of a foreign
country in accordance with the residence requirement provided for in the
election laws. (Sec. 25, 1971 EC)
 Sec. 72. Effects of disqualification cases and priority. The Commission
and the courts shall give priority to cases of disqualification by reason of
violation of this Act to the end that a final decision shall be rendered not
later than seven days before the election in which the disqualification is
sought.
Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted.
Nevertheless, if for any reason, a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, his violation of the
provisions of the preceding sections shall not prevent his proclamation
and assumption to office.
III
Still assuming that the repatriation is valid, I am not persuaded by the arguments in support
of the thesis that Frivaldo's repatriation may be given retroactive effect, as such goes
against the spirit and letter of P.D. No. 725. The spirit adheres to the principle that
acquisition or re-acquisition of Philippine citizenship is not a right, but a mere privilege.
Before the advent of P.D. No. 725, only the following could apply for repatriation: (a) Army,
Navy, or Air Corps deserters; and (b) a woman who lost her citizenship by reason of her
marriage to an alien after the death of her spouse (Section 2[2], C.A. No. 63). P.D. NO. 725
expanded this to include Filipino women who lost their Philippine citizenship by marriage to
aliens even before the death of their alien husbands, or the termination of their marital
status and to natural-born Filipino citizens who lost their Philippine citizenship but
subsequently desired to reacquire the latter.
Turning now to the letter of the law, P.D. No. 725 expressly provides that repatriation takes
effect only after taking the oath of allegiance to the Republic of the Philippines, thus:
. . . may reacquire Philippine citizenship . . . by applying with the Special
Committee on Naturalization created by Letter of Instruction No. 270, and,
if their applications are approved, taking the necessary oath of allegiance
to the Republic of the Philippines, AFTER WHICH THEY SHALL BE
DEEMED TO HAVE REACQUIRED PHILIPPINE CITIZENSHIP.
(emphasis and capitalization supplied)
Clearly then, the steps to reacquire Philippine citizenship by repatriation under the
decree are: (1) filing the application; (2) action by the committee; and (3) taking of
the oath of allegiance if the application is approved. It is only UPON TAKING THE
OATH OF ALLEGIANCE that the applicant is deemed ipso jure to have reacquired
Philippine citizenship. If the decree had intended the oath taking to retroact to the
date of the filing of the application, then it should not have explicitly provided
otherwise.
This theory in the ponencia likewise dilutes this Court's pronouncement in the
first Frivaldo case that what reacquisition of Filipino citizenship requires is an act "formally
rejecting [the] adopted state and reaffirming . . . allegiance to the Philippines." That act
meant nothing less than taking of the oath of allegiance to the Republic of the Philippines. If
we now take this revision of doctrine to its logical end, then it would also mean that if
Frivaldo had chosen and reacquired Philippine citizenship by naturalization or through
Congressional action, such would retroact to the filing of the petition for naturalization or the
bill granting him Philippine citizenship. This is a proposition which both the first and second
Frivaldo cases soundly rejected.
The other reason adduced in the ponencia in support of the proposition that P.D. No. 725
can be given retroactive effect is its alleged curative or remedial nature.
Again, I disagree. In the first place, by no stretch of legal hermeneutics may P.D. No. 725 be
characterized as a curative or remedial statute:
Curative or remedial statutes are healing acts. They are remedial by
curing defects and adding to the means of enforcing existing obligations.
The rule in regard to curative statutes is that if the thing omitted or failed
to be done, and which constitutes the defect sought to be removed or
made harmless, is something the legislature might have dispensed with
by a previous statute, it may do so by a subsequent one.
Curative statutes are intended to supply defects, abridge superfluities in
existing laws, and curb certain evils. They are intended to enable a
person to carry into effect that which they have designed and intended,
but has failed of expected legal consequence by reason of some statutory
disability or irregularity in their own action. They make valid that which,
before the enactment of the statute, was invalid. (RUBEN E. AGPALO,
Statutory Construction, Second ed. [1990], 270-271, citations omitted).
P.D. No. 725 provides for the reacquisition of Philippine citizenship lost through the
marriage of a Filipina to an alien and through naturalization in a foreign country of natural-
born Filipino citizens. It involves then the substantive, nay primordial, right of citizenship. To
those for whom it is intended, it means, in reality, the acquisition of "a new right," as
the ponencia cannot but concede. Therefore, it may not be said to merely remedy or cure a
defect considering that one who has lost Philippine citizenship does not have the right to
reacquire it. As earlier stated, the Constitution provides that citizenship, once lost, may only
be reacquired in the manner provided by law. Moreover, it has also been observed that:
The idea is implicit from many of the cases that remedial statutes are
statutes relating to procedure and not substantive rights. (Sutherland,
Statutory Construction, Vol. 3, Third ed. [1943], §5704 at 74, citations
omitted).
If we grant for the sake of argument, however, that P.D. No. 725 is curative or remedial
statute, it would be an inexcusable error to give it a retroactive effect since it explicitly
provides the date of its effectivity. Thus:
 This Decree shall take effect immediately.
Done in the city of Manila, this 5th day of June, in the year of Our Lord,
nineteen hundred and seventy five.
Nevertheless, if the retroactivity is to relate only to the reacquisition of Philippine citizenship,
then nothing therein supports such theory, for as the decree itself unequivocally provides, it
is only after taking the oath of allegiance to the Republic of the Philippines that the
applicant is DEEMED TO HAVE REACQUIRED PHILIPPINE CITIZENSHIP.
IV
Assuming yet again, for the sake of argument, that taking the oath of allegiance retroacted
to the date of Frivaldo's application for repatriation, the same could not be said insofar as it
concerned the United States of America, of which he was a citizen. For under the laws of
the United States of America, Frivaldo remained an American national until he renounced
his citizenship and allegiance thereto at 2:00 p.m. on 30 June 1995, when he took his oath
of allegiance to the Republic of the Philippines. Section 401 of the Nationality Act of 1940 of
the United States of America provides that a person who is a national of the United States
of America, whether by birth or naturalization, loses his nationality by, inter alia, "(b) Taking
an oath or making an affirmation or other formal declaration of allegiance to a foreign state"
(SIDNEY KANSAS, U.S. Immigration Exclusion and Deportation and Citizenship of the
United States of America, Third ed., [1948] 341-342). It follows then that on election day and
until the hour of the commencement of the term for which he was elected - noon of 30 June
1995 as per Section 43 of the Local Government Code - Frivaldo possessed dual
citizenship, viz., (a) as an American citizen; and (b) as a Filipino citizen through the adoption
of the theory that the effects of his taking the oath of allegiance were retrospective. Hence,
he was disqualified to run for Governor for yet another reason: possession of dual
citizenship, in accordance with Section 40 (d) of the Local Government Code.
V And the Preamble makes it clear when it solemnly opens it with a clause "We, the
The assertion in the ponencia that Frivaldo may be considered STATELESS on the basis of
his claim that he "had long renounced and had long abandoned his American citizenship -
long before May 8, 1985" - is untenable, for the following reasons: first, it is based on
Frivaldo's unproven, self-serving allegation; second, informal renunciation or abandonment
is not a ground to lose American citizenship; and third, simply put, never did the status of a
STATELESS person attach to Frivaldo.
Statelessness may be either de jure, which is the status of individuals stripped of their
nationality by their former government without having an opportunity to acquire another;
or de facto, which is the status of individuals possessed of a nationality whose country does
not give them protection outside their own country, and who are commonly, albeit
imprecisely, referred to as refugees (JORGE R. COQUIA, et al., Conflict of Laws Cases,
Materials and Comments, 1995 ed., 290).
Specifically, under Chapter 1, Article 1 of the United Nations Convention Regarding the
Status of Stateless Persons (Philippine Treaty Series, Compiled and Annotated by Haydee
B. Yorac, vol. III, 363), a stateless person is defined as "a person who is not considered as
a national by any State under the operation of its law." However, it has not been shown that
the United States of America ever ceased to consider Frivaldo its national at any time
before he took his oath of allegiance to the Republic of the Philippines on 30 June 1995.
VI
Finally, I find it in order to also express my view on the concurring opinion of Mr. Justice
Reynato S. Puno. I am absolutely happy to join him in his statement that "[t]he sovereignty
of our people is the primary postulate of the 1987 Constitution" and that the said
Constitution is "more people-oriented," "borne [as it is] out of the 1986 people power EDSA
revolution." I would even go further by saying that this Constitution is pro-
God (Preamble), pro-people (Article II, Sections 1, 3, 4, 5, 9, 15, 16; Article XI, Section 1,
Article XII, Sections 1, 6; Article XIII, Sections 1, 11, 15, 16, 18; Article XVI, Sections 5(2),
6), pro-Filipino (Article XII, Sections 1, 2, 10, 11, 12, 14; Article XIV, Sections 1, 4(2), 13;
Article XVI, Section 11), pro-poor (Article II, Sections 9, 10, 18, 21; Article XII, Sections 1,
2(3); Article XIII, Sections 1, 3, 4, 5, 6, 7, 9, 10, 11, 13), pro-life (Article II, Section 12),
and pro-family (Article II, Section 12; Article XV).
Nevertheless, I cannot be with him in carrying out the principle of sovereignty beyond what I
perceive to be the reasonable constitutional parameters. The doctrine of people's
sovereignty is founded on the principles of democracy and republicanism and refers
exclusively to the sovereignty of the people of the Philippines. Section 1 of Article II is quite
clear on this, thus:
Sec. 1. The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from them.
sovereign Filipino people . . ." Thus, this sovereignty is an attribute of the Filipino
people as one people, one body.
That sovereign power of the Filipino people cannot be fragmentized by looking at it as the
supreme authority of the people of any of the political subdivisions to determine their own
destiny; neither can we convert and treat every fragment as the whole. In such a case, this
Court would provide the formula for the division and destruction of the State and render the
Government ineffective and inutile. To illustrate the evil, we may consider the enforcement
of laws or the pursuit of a national policy by the executive branch of the government, or the
execution of a judgment by the courts. If these are opposed by the overwhelming majority of
the people of a certain province, or even a municipality, it would necessarily follow that the
law, national policy, or judgment must not be enforced, implemented, or executed in the
said province or municipality. More concretely, if, for instance, the vast majority of the
people of Batanes rise publicly and take up arms against the Government for the purpose of
removing from the allegiance to the said Government or its laws, the territory of the
Republic of the Philippines or any part thereof, or any body of land, naval, or other armed
forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their
powers or prerogatives, then those who did so -- and which are composed of the vast
majority of the people of Batanes -- a political subdivision -- cannot be prosecuted for or be
held guilty of rebellion in violation of Article 134 of the Revised Penal Code because of the
doctrine of peoples' sovereignty. Indeed, the expansion of the doctrine of sovereignty by
investing upon the people of a mere political subdivision that which the Constitution places
in the entire Filipino people, may be disastrous to the Nation.
So it is in this case if we follow the thesis in the concurring opinion. Thus, simply because
Frivaldo had obtained a margin of 20,000 votes over his closest rival, Lee, i.e., a vast
majority of the voters of Sorsogon had expressed their sovereign will for the former, then
this Court must yield to that will and must, therefore, allow to be set aside, for Frivaldo, not
just the laws on qualifications of candidates and elective officials and naturalization and
reacquisition of Philippine citizenship, but even the final and binding decisions of this Court
affecting him.
This Court must be the first to uphold the Rule of Law. I vote then to DISMISS G.R. No.
120295 and GRANT G.R. No. 123755.
1 Composed of Pres. CoFootnotesmm. Regalado E. Maambong, ponente; Comm.
Graduacion A.R. Claravall, concurring, and Comm. Julio F. Desamito, dissenting.
2 In SPC No. 95-317, entitled Juan G. Frivaldo, petitioner, vs. Raul R. Lee,
respondent; rollo, pp. 110-129.
3 Signed by Chairman Bernardo P. Pardo, Comms. Regalado E. Maambong, Remedios A.
Salazar-Fernando, Manolo B. Gorospe and Teresita Dy-Liaco Flores. Chairman Pardo
certified that "Commissioner Julio F. Desamito was on official travel at the time of the
deliberation and resolution of this case. However, the Commission has reserved to Comm.
Desamito the right to submit a dissenting opinion." Rollo, pp. 159-171.
4 Rollo, pp. 46-49.
5 Rollo, pp. 50-55. The Second Division was composed of Pres. Comm. Remedios A.
Salazar-Fernando, ponente; Comm. Teresita Dy-Liaco Flores, concurring, and Comm.
Manolo B. Gorospe ("on official business").
6 Frivaldo was naturalized as an American citizen on January 20, 1983. In G.R. No. 87193,
Frivaldo vs. Commission on Elections, 174 SCRA 245 (June 23, 1989), the Supreme Court,
by reason of such naturalization, declared Frivaldo "not a citizen of the Philippines and
therefore DISQUALIFIED from serving as Governor of the Province of Sorsogon." On
February 28, 1992, the Regional Trial Court of Manila granted the petition for naturalization
of Frivaldo. However, the Supreme Court in G.R. No. 104654, Republic of the Philippines
vs. De la Rosa, et al., 232 SCRA 785 (June 6, 1994), overturned this grant, and Frivaldo
was "declared not a citizen of the Philippines" and ordered to vacate his office. On the basis
of this latter Supreme Court ruling, the Comelec disqualified Frivaldo in SPA No. 95-028.
7 Signed by Chairman Bernardo P. Pardo and the six incumbent commissioners, namely,
Regalado E. Maambong, Remedios A. Salazar-Fernando, Manolo B. Gorospe, Graduacion
A. Reyes-Claravall, Julio F. Desamito and Teresita Dy-Liaco Flores; rollo, pp. 56-57.
8 Rollo, p. 60.
9 Rollo, pp. 61-67.
10 Rollo, pp. 86-87. The Comelec considered the votes cast for Frivaldo as "stray votes",
and thus Lee was held as having garnered the "highest number of votes."
11 Rollo, pp. 88-97. This is the forerunner of the present case.
12 211 SCRA 297 (July 3, 1992) and 176 SCRA 1 (August 1, 1989).
13 Rollo, pp. 110-128.
14 Rollo, pp. 159-170.
15 Rollo, pp. 16-17; petition, pp. 14-15.
16 Rollo, pp. 10-15. This is the same resolution referred to in footnote no. 5.
17 Rollo, pp. 16-17. This is the same resolution referred to in footnote no. 7.
18 Rollo, pp. 18-21. This is signed also by the Chairman and the six other Comelec
Commissioners.
19 Republic Act No. 7160.
20 See footnote no. 6, supra.
21 In debunking Frivaldo's claim of citizenship, this Court in G.R. No. 87193, supra, p. 254,
observed that "(i)f he (Frivaldo) really wanted to disavow his American citizenship and
reacquire Philippine citizenship, petitioner should have done so in accordance with the laws
of our country. Under C.A. No. 63 as amended by C.A. No. 473 and P.D. 725, Philippine
citizenship may be reacquired by direct act of Congress, by naturalization, or by
repatriation."
22 Supra, p. 794.
23 Petition, p. 27; rollo, p. 29.
24 The full text of said memorandum reads as follows:
MEMORANDUM
TO : The Solicitor General
The Undersecretary of Foreign Affairs
The Director-General
National Intelligence Coordinating Agency
The previous administration's practice of granting citizenship by Presidential Decree or any
other executive issuance, and the derivative administrative authority thereof, poses a
serious and contentious issue of policy which the present government, in the exercise of
prudence and sound discretion, should best leave to the judgment of the first Congress
under the 1987 Constitution.
In view of the foregoing, you as Chairman and members of the Special Committee on
Naturalization, are hereby directed to cease and desist from undertaking any and all
proceedings within your functional area of responsibility, as defined in Letter of Instructions
No. 270 dated April 11, 1975, as amended, Presidential Decree No. 836 dated December 3,
1975, as amended, and Presidential Decree No. 1379 dated May 17, 1978, relative to the
grant of citizenship under the said laws, and any other related laws, orders, issuances and
rules and regulations.
(Sgd.) Corazon C. Aquino
Manila, March 27, 1987. WHEREAS, there are natural born Filipinos who have lost their Philippine citizenship but
now desire to re-acquire Philippine citizenship;
25 Art. 7, Civil Code of the Philippines.
Now, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of
26 Cf. Ty, et al. vs. Trampe, et al., G.R. No. 117577 (December 1, 1995). the powers in me vested by the Constitution, do hereby decree and order that: (1) Filipino
women who lost their Philippine citizenship by marriage to aliens; and (3) natural born
Filipinos who have lost their Philippine citizenship may reacquire Philippine citizenship
27 Petition, p. 28; rollo, p. 30. through repatriation by applying with the Special Committee on Naturalization created by
Letter of Instructions No. 270, and, if their applications are approved, taking the necessary
28 The aforesaid Manifestation reads as follows: oath of allegiance to the Republic of the Philippines, after which they shall be deemed to
have reacquired Philippine citizenship. The Commission on Immigration and Deportation
MANIFESTATION shall thereupon cancel their certificate of registration.

The Solicitor General, as Chairman of the Special Committee on Naturalization, hereby The aforesaid Special Committee is hereby authorized to promulgate rules and regulations
manifests that the following persons have been repatriated by virtue of Presidential Decree and prescribe the appropriate forms and the required fees for the effective implementation
No. 725, since June 8, 1995: of this Decree.

1. Juan Gallanosa Frivaldo R-000900 This Decree shall take effect immediately.
2. Manuel Reyes Sanchez 901
3. Ma. Nelly Dessalla Ty 902 Done in the City of Manila, this 5th day of June, in the year of Our Lord, nineteen hundred
4. Terry Herrera and and seventy-five.
Antonio Ching 903
5. Roberto Salas Benedicto 904 30 See footnote no. 6, supra.
6. Winthrop Santos Liwag 905
7. Samuel M. Buyco 906
8. Joselito Holganza Ruiz 907 31 Cf. Labo, Jr. vs. Comelec, 211 SCRA 297 (July 3, 1992).
9. Samuel Villanueva 908
10. Juan Leonardo Collas, Jr. 909 32 The term of office of all local elective officials elected after the effectivity of this Code
11. Felicilda Otilla Sacnanas-Chua 910 shall be three (3) years, starting from noon of June 30, 1992 or such date as may be
29 The text of P.D. 725 is reproduced below: provided for by law, . . ." Sec. 43, Local Government Code.
PRESIDENTIAL DECREE No. 725
33 96 Phil. 447, 453 (1955).
PROVIDING FOR REPATRIATION OF FILIPINO WOMEN WHO HAD LOST THEIR
PHILIPPINE CITIZENSHIP BY MARRIAGE TO ALIENS AND OF NATURAL BORN 34 The following are excerpts from the transcript of stenographic notes of the oral argument
FILIPINOS. held on March 19, 1996:

WHEREAS, there are many Filipino women who had lost their Philippine citizenship by JUSTICE PANGANIBAN: Mr. Counsel, it is your position then that the
marriage to aliens; candidate should be a citizen at the time of proclamation?

WHEREAS, while the new Constitution allows a Filipino woman who marries an alien to
retain her Philippine citizenship unless by her act or omission, she is deemed under the law
to have renounced her Philippine citizenship, such provision of the new Constitution does
not apply to Filipino women who had married aliens before said constitution took effect;
WHEREAS, the existing law (C.A. No. 63, as amended) allows the repatriation of Filipino
women who lost their citizenship by reason of their marriage to aliens only after the death of
their husbands or the termination of their marital status; and
ATTY. BRILLANTES: Yes, Your Honor, it is required that he must be a
citizen at the time of proclamation and not only that, at the time that he
assumes the office he must have the continuing qualification as a citizen.
JUSTICE PANGANIBAN: Should that not be reckoned from the time of
filing of certificate of candidacy or at least the day of the election?
ATTY. BRILLANTES: Yes, Your Honor, there are positions taken that it
should be reckoned from the date of certificate of candidacy as in the
case of qualification for Batasang Pambansa before under B.P. 53 - it
says that for purposes of residence it must be reckoned . . . from the time
of the filing of the certificate, for purposes of age, from the time of the date
of the election. But when we go over all the provisions of law under
current laws, Your Honor, there is no qualification requirement insofar as
citizenship is concern(ed) as to when, as to when you should be a citizen
of the Philippines and we say that if there is no provision under any
existing law which requires that you have to be a citizen of the Philippines
on the date of the filing or on the date of election then it has to be
equitably interpreted to mean that if you are already qualified at the time
that the office is supposed to be assumed then you should be allowed to
assume the office.
JUSTICE PANGANIBAN: Is it not also true that under the Local
Autonomy Code the candidate should also be a registered voter and to be
a registered voter one must be a citizen?
ATTY. BRILLANTES: Yes, Your Honor, in fact, Mr. Frivaldo has always
been a registered voter of Sorsogon. He has voted in 1987, 1988, 1992,
then he voted again in 1995. In fact, his eligibility as a voter was
questioned but the Court dismissed (sic) his eligibility as a voter and he
was allowed to vote as in fact, he voted in all the previous elections
including on May 8, 1995.
JUSTICE PANGANIBAN: But the fact that he voted does not make him a
citizen. The fact is, he was declared not a citizen by this Court twice.
ATTY. BRILLANTES: That is true, Your Honor, we admit that he has been
twice declared not citizen and we admit the ruling of the Supreme Court is
correct but the fact is, Your Honor, the matter of his eligibility to vote as
being a registered voter was likewise questioned before the judiciary.
There was a ruling by the Municipal Court, there was a ruling by the
Regional Trial Court and he was sustained as a valid voter, so he voted.
JUSTICE PANGANIBAN: I raised this question in connection with your
contention that citizenship should be determined as of the time of
proclamation and not as of the time of the election or at the time of the
filing of the certificate of candidacy.
ATTY. BRILLANTES: That is true, Your Honor.
JUSTICE PANGANIBAN: And is it your contention that under the law,
particularly the Local Autonomy Code, the law does not specify when
citizenship should be possessed by the candidate, is that not correct?
ATTY. BRILLANTES: That is right, Your Honor, there is no express
provision.
JUSTICE PANGANIBAN: I am also asking you that under the Local
Autonomy Code the candidate for governor or for other local positions
should be a voter and to be a voter one must be a citizen?
ATTY. BRILLANTES: That is right, Your Honor, but the fact of voting is
not an issue here because he was allowed to vote and he did in fact vote
and in fact, he was a registered voter. (TSN, March 19, 1996.)
35 Section 117, Batas Pambansa Blg. 881, otherwise known as "The Omnibus Election
Code of the Philippines", as amended, provides for the various qualifications of voters, one
of which is Filipino citizenship.
36 Comment, p. 11; rollo, p. 259.
37 See footnote no. 33.
38 Section 253 reads as follows:
Sec. 253. Petition for quo warranto. -- Any voter contesting the election of any member of
the Congress, regional, provincial, or city officer on the ground of ineligibility or of disloyalty
to the Republic of the Philippines shall file a sworn petition for quo warranto with the
Commission within ten days after the proclamation of the results of the election. (Art. XIV,
Sec. 60, BP 697; Art. XVIII, Sec. 189, par. 2, 1978 EC).
Any voter contesting the election of any municipal or barangay officer on the ground of
ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo
warranto with the regional trial court or metropolitan or municipal trial court, respectively,
within ten days after the proclamation of the results of the election. (Art. XVIII, Sec. 189, par.
2, 1978 EC).
39 Art. 4, New Civil Code. See also Gallardo vs. Borromeo, 161 SCRA 500 (May 25, 1988),
and Nilo vs. Court of Appeals, 128 SCRA 519 (April 2, 1984).
40 Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. I,
1990 ed., p. 23 states:
Exceptions to Rule. -- Statutes can be given retroactive effect in the following cases: (1)
when the law itself so expressly provides, (2) in case of remedial statutes, (3) in case of
curative statutes, (4) in case of laws interpreting others, and (5) in case of laws creating new
rights.
41 Id., p. 25.
42 Agpalo, Statutory Construction, 1990 ed., pp. 270-271.
43 73 Am Jur 2d, Sec. 354, p. 489, cited in Castro vs. Sagales, 94 Phil. 208, 210 (1953).
44 Memorandum, p. 9.
45 73 Am Jur 2d, Sec. 351, p. 488.
46 73 Am Jur 2d, Sec. 354, p. 490; emphasis supplied.
47 Art. 10, Civil Code of the Philippines.
48 Based on the "Corrected Compliance" dated May 16, 1996 filed by the Solicitor General,
it appears that, excluding the case of Frivaldo, the longest interval between date of filing of
an application for repatriation and its approval was three months and ten days; the swiftest
action was a same-day approval.

49 Sec. 40. Disqualifications. -- The following persons are disqualified from running for any
elective local position:

xxx xxx xxx

(d) Those with dual citizenship;"

50 p. 11; rollo, p. 259.

51 Resolution, p. 12; rollo, p. 121.

52 Cf. Navarro vs. Commission on Elections, 228 SCRA 596 (December 17, 1993); Arao vs.
Commission on Elections, 210 SCRA 290 (June 23, 1992).

53 The dispositive portion of said Resolution reads:

WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is
DISQUALIFIED to run for the office of Provincial Governor of Sorsogon on the ground that
he is not a citizen of the Philippines. Accordingly respondent's certificate of candidacy is
cancelled.
G.R. No. L-68385 May 12, 1989
ILDEFONSO O. ELEGADO, as Ancillary Administrator of the Testate Estate of the late
WARREN TAYLOR GRAHAM, petitioner
vs.
HON. COURT OF TAX APPEALS and COMMISSIONER OF INTERNAL
REVENUE respondents.
Agrava, Lucero & Gineta for petitioners.
The Office of the Solictor General for public respondents.
CRUZ, J.:
What the petitioner presents as a rather complicated problem is in reality a very simple
question from the viewpoint of the Solicitor General. We agree with the latter. There is
actually only one issue to be resolved in this action. That issue is whether or not the
respondent Court of Tax Appeals erred in dismissing the petitioner's appeal on grounds of
jurisdiction and lack of a cause of action.
Appeal from what? That indeed is the question.
But first the facts.
On March 14, 1976, Warren Taylor Graham, an American national formerly resident in the
Philippines, died in Oregon, U.S.A. 1 As he left certain shares of stock in the Philippines, his
son, Ward Graham, filed an estate tax return on September 16, 1976, with the Philippine
Revenue Representative in San Francisco, U.S.A. 2
On the basis of this return, the respondent Commissioner of Internal Revenue assessed the
decedent's estate an estate tax in the amount of P96,509.35 on February 9, 1978. 3 This
assessment was protested on March 7, 1978, by the law firm of Bump, Young and Walker
on behalf of the estate . 4 The protest was denied by the Commissioner on July 7, 1978. 5 No
further action was taken by the estate in pursuit of that protest.
Meanwhile, on January 18, 1977, the decedent's will had been admitted to probate in the
Circuit Court of Oregon 6Ward Graham, the designated executor, then appointed Ildefonso
Elegado, the herein petitioner, as his attorney-in-fact for the allowance of the will in the
Philippines.7
Pursuant to such authority, the petitioner commenced probate proceedings in the Court of
First Instance of Rizal. 8The will was allowed on December 18, 1978, with the petitioner as
ancillary administrator. 9 As such, he filed a second estate tax return with the Bureau of
Internal Revenue on June 4, 1980.10
On the basis of this second return, the Commissioner imposed an assessment on the estate
in the amount of P72,948.87.11 This was protested on behalf of the estate by the Agrava,
Lucero and Gineta Law Office on August 13, 1980.12
While this protest was pending, the Commissioner filed in the probate proceedings a motion
for the allowance of the basic estate tax of P96,509.35 as assessed on February 9,
1978.13 He said that this liability had not yet been paid although the assessment had long
become final and executory.
The petitioner regarded this motion as an implied denial of the protest filed on August 13,
1980, against the second assessment of P72,948.87.14 On this understanding, he filed on
September 15, 1981, a petition for review with the Court of Tax Appeals challenging the
said assessment. 15
The Commissioner did not immediately answer (in fact, as the petitioner stressed, no
answer was filed during a delay of 195 days) and in the end instead cancelled the protested
assessment in a letter to the decedent's estate dated March 31, 1982. 16 This cancellation
was notified to the Court of Tax Appeals in a motion to dismiss on the ground that the
protest had become moot and academic.17
The motion was granted and the petition dismissed on April 25, 1984. 18 The petitioner then
came to this Court oncertiorari under Rule 45 of the Rules of Court.
The petitioner raises three basic questions, to wit, (1) whether the shares of stocks left by
the decedent should be treated as his exclusive, and not conjugal, property; (2) whether the
said stocks should be assessed as of the time of the owner's death or six months thereafter;
and (3) whether the appeal filed with the respondent court should be considered moot and
academic.
We deal first with the third issue as it is decisive of this case.
In the letter to the decedent's estate dated March 31, 1982, the Commissioner of Internal
Revenue wrote as follows:
Estate of WARREN T. GRAHAM c/o Mr. ILDEFENSO O. ELEGADO Ancillary Administrator
Philex Building cor. Brixton & Fairlane Sts. Pasig, Metro Manila
Sir:
This is with regard to the estate of the late WARREN TAYLOR GRAHAM,
who died a resident of Oregon, U.S.A. on March 14, 1976. It appears that
two (2) letters of demand were issued by this Bureau. One is for the
amount of P96,509.35 based on the first return filed, and the other in the
amount of P72,948.87, based on the second return filed.
It appears that the first assessment of P96,509.35 was issued on
February 9, 1978 on the basis of the estate tax return filed on September
16, 1976. The said assessment was, however, protested in a letter dated
March 7, 1978 but was denied on July 7, 1978. Since no appeal was
made within the regulatory period, the same has become final.
 In view thereof, it is requested that you settle the aforesaid assessment
for P96,509.35 within fifteen (15) days upon receipt hereof to the
Receivable Accounts Division, this Bureau, BIR National Office Building,
Diliman, Quezon City. The assessment for P72,949.57 dated July 3,
1980, referred to above is hereby cancelled.
Very truly yours,
(SGD.) RUBEN B. ANCHETA Acting Commissioner 19
It is obvious from the express cancellation of the second assessment for P72,948.87 that
the petitioner had been deprived of a cause of action as it was precisely from this
assessment that he was appealing.
In its decision, the Court of Tax Appeals said that the petition questioning the assessment of
July 3, 1980, was "premature" since the protest to the assessment had not yet been
resolved.20 As a matter of fact it had: the said assessment had been cancelled by virtue of
the above-quoted letter. The respondent court was on surer ground, however, when it
followed with the finding that the said cancellation had rendered the petition moot and
academic. There was really no more assessment to review.
The petitioner argues that the issuance of the second assessment on July 3, 1980, had the
effect of canceling the first assessment of February 9, 1978, and that the subsequent
cancellation of the second assessment did not have the effect of automatically reviving the
first. Moreover, the first assessment is not binding on him because it was based on a return
filed by foreign lawyers who had no knowledge of our tax laws or access to the Court of Tax
Appeals.
The petitioner is clutching at straws.
It is noted that in the letter of July 3, 1980, imposing the second assessment of P72,948.87,
the Commissioner made it clear that "the aforesaid amount is considered provisional only
based on the estate tax return filed subject to investigation by this Office for final
determination of the correct estate tax due from the estate. Any amount that may be found
due after said investigation will be assessed and collected later." 21 It is illogical to suggest
that aprovisional assessment can supersede an earlier assessment which had clearly
become final and executory.
The second contention is no less flimsy. The petitioner cannot be serious when he argues
that the first assessment was invalid because the foreign lawyers who filed the return on
which it was based were not familiar with our tax laws and procedure. Is the petitioner
suggesting that they are excused from compliance therewith because of their ignorance?
If our own lawyers and taxpayers cannot claim a similar preference because they are not
allowed to claim a like ignorance, it stands to reason that foreigners cannot be any less
bound by our own laws in our own country. A more obvious and shallow discrimination than
that suggested by the petitioner is indeed difficult to find.
But the most compelling consideration in this case is the fact that the first assessment is
already final and executory and can no longer be questioned at this late hour. The
assessment was made on February 9, 1978. It was protested on March 7, 1978. The protest
was denied on July 7, 1978. As no further action was taken thereon by the decedent's
estate, there is no question that the assessment has become final and executory.
In fact, the law firm that had lodged the protest appears to have accepted its denial. In his
motion with the probate court, the respondent Commissioner stressed that "in a letter dated
January 29, 1980, the Estate of Warren Taylor Graham thru the aforesaid foreign law firm
informed claimant that they have paid said tax liability thru the Agrava, Velarde, Lucero and
Puno, Philippine law firm of 313 Buendia Avenue Ext., Makati, Metro Manila that initiated
the instant ancillary proceedings" although he added that such payment had not yet been
received.22 This letter was an acknowledgment by the estate of the validity and finality of the
first assessment. Significantly, it has not been denied by the petitioner.
In view of the finality of the first assessment, the petitioner cannot now raise the question of
its validity before this Court any more than he could have done so before the Court of Tax
Appeals. What the estate of the decedent should have done earlier, following the denial of
its protest on July 7, 1978, was to appeal to the Court of Tax Appeals within the
reglementary period of 30 days after it received notice of said denial. It was in such appeal
that the petitioner could then have raised the first two issues he now raises without basis in
the present petition.
The question of whether or not the shares of stock left by the decedent should be
considered conjugal property or belonging to him alone is immaterial in these proceedings.
So too is the time at which the assessment of these shares of stock should have been made
by the BIR. These questions were not resolved by the Court of Tax Appeals because it had
no jurisdiction to act on the petitioner's appeal from an assessment that had already been
cancelled. The assessment being no longer controversial or reviewable, there was no
justification for the respondent court to rule on the petition except to dismiss it.
If indeed the Commissioner of Internal Revenue committed an error in the computation of
the estate tax, as the petitioner insists, that error can no longer be rectified because the
original assessment has long become final and executory. If that assessment was not
challenged on time and in accordance with the prescribed procedure, that error — for error
it was — was committed not by the respondents but by the decedent's estate itself which
the petitioner represents. So how can he now complain.
WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered,
Narvasa (Chairman), Griño-Aquino and Medialdea, JJ., concur.
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 Juego’s widow, Maria, filed in the Regional Trial Court (RTC) of
Pasig a complaint for damages against the deceased’s employer, D.M. Consunji, Inc. The
employer raised, among other defenses, the widow’s 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. Juego’s earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorney’s 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 are prima facieevidence 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. In Rodriguez 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 Villanueva’s 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 Juego’s remains at the morgue, 12 making the latter’s 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 Villanueva’s 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
Petitioner’s 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 loquitur is 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 defendant’s 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 defendant’s 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 defendant’s negligence is beyond plaintiff’s 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 appellee’s husband fell down from the 14 th floor of a
building to the basement while he was working with appellant’s 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 appellee’s 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 appellant’s 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 respondent’s
husband."
Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier,
the defendant’s 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.1âwphi1.nêt
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 Fabro’s 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 Fabro’s sworn statement as proof of its due care but, in
arguing that private respondent failed to prove negligence on the part of petitioner’s
employees, also assails the same statement for being hearsay.
Petitioner is correct. Fabro’s 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 affiant’s 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 husband’s 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
deceased’s 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 Workmen’s 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 Workmen’s 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 Pacaña 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 worker’s right under the Workmen’s 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 Workmen’s Compensation Act and sue
in addition for damages in the regular courts.
In disposing of a similar issue, this Court in Pacaña vs. Cebu Autobus Company,
32 SCRA 442, ruled that an injured worker has a choice of either to recover from
the employer the fixed amounts set by the Workmen’s 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
Workmen’s 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 Workmen’s
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
Workmen’s 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 Workmen’s 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 Workmen’s 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 Workmen’s
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 Workmen’s 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 Workmen’s 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 respondent’s case came under the exception because private
respondent was unaware of petitioner’s 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 Prosecutor’s
Memorandum dismissing the criminal complaint against petitioner’s 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 investigator’s
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 appellant’s employees. It was the
investigator who recommended the filing of said case and his supervisor referred
the same to the prosecutor’s 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 appellant’s
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 Prosecutor’s 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 appellee’s allegation that she learned
about appellant’s 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 petitioner’s
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 petitioner’s 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 Floresca that 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 party’s 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 petitioner’s 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 husband’s
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
petitioner’s employees, of which private respondent purportedly learned only after the
prosecutor issued a resolution stating that there may be civil liability. In Floresca, 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 a conclusion 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 Court’s ruling in Floresca 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 person’s 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.

July 30, 1979
PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM NAME "SYCIP,
SALAZAR, FELICIANO, HERNANDEZ & CASTILLO." LUCIANO E. SALAZAR,
FLORENTINO P. FELICIANO, BENILDO G. HERNANDEZ. GREGORIO R. CASTILLO.
ALBERTO P. SAN JUAN, JUAN C. REYES. JR., ANDRES G. GATMAITAN, JUSTINO H.
CACANINDIN, NOEL A. LAMAN, ETHELWOLDO E. FERNANDEZ, ANGELITO C.
IMPERIO, EDUARDO R. CENIZA, TRISTAN A. CATINDIG, ANCHETA K. TAN, and
ALICE V. PESIGAN, petitioners.
IN THE MATTER OF THE PETITION FOR AUTHORITY TO CONTINUE USE OF THE
FIRM NAME "OZAETA, ROMULO, DE LEON, MABANTA & REYES." RICARDO J.
ROMULO, BENJAMIN M. DE LEON, ROMAN MABANTA, JR., JOSE MA, REYES,
JESUS S. J. SAYOC, EDUARDO DE LOS ANGELES, and JOSE F.
BUENAVENTURA, petitioners.
RESOLUTION
MELENCIO-HERRERA, J.
Two separate Petitions were filed before this Court 1) by the surviving partners of Atty.
Alexander Sycip, who died on May 5, 1975, and 2) by the surviving partners of Atty.
Herminio Ozaeta, who died on February 14, 1976, praying that they be allowed to continue
using, in the names of their firms, the names of partners who had passed away. In the
Court's Resolution of September 2, 1976, both Petitions were ordered consolidated.
Petitioners base their petitions on the following arguments:
1. Under the law, a partnership is not prohibited from continuing its business under a firm
name which includes the name of a deceased partner; in fact, Article 1840 of the Civil Code
explicitly sanctions the practice when it provides in the last paragraph that: têñ.£îhqwâ£
The use by the person or partnership continuing the business of the
partnership name, or the name of a deceased partner as part
thereof, shall not of itself make the individual property of the deceased
partner liable for any debts contracted by such person or partnership. 1
2. In regulating other professions, such as accountancy and engineering, the legislature has
authorized the adoption of firm names without any restriction as to the use, in such firm
name, of the name of a deceased partner; 2 the legislative authorization given to those
engaged in the practice of accountancy — a profession requiring the same degree of trust
and confidence in respect of clients as that implicit in the relationship of attorney and client
— to acquire and use a trade name, strongly indicates that there is no fundamental policy
that is offended by the continued use by a firm of professionals of a firm name which
includes the name of a deceased partner, at least where such firm name has acquired the
characteristics of a "trade name." 3
3. The Canons of Professional Ethics are not transgressed by the continued use of the
name of a deceased partner in the firm name of a law partnership because Canon 33 of the
Canons of Professional Ethics adopted by the American Bar Association declares
that: têñ.£îhqwâ£
... The continued use of the name of a deceased or former partner when
permissible by local custom, is not unethical but care should be taken that
no imposition or deception is practiced through this use. ... 4
4. There is no possibility of imposition or deception because the deaths of their respective
deceased partners were well-publicized in all newspapers of general circulation for several
days; the stationeries now being used by them carry new letterheads indicating the years
when their respective deceased partners were connected with the firm; petitioners will notify
all leading national and international law directories of the fact of their respective deceased
partners' deaths. 5
5. No local custom prohibits the continued use of a deceased partner's name in a
professional firm's name; 6 there is no custom or usage in the Philippines, or at least in the
Greater Manila Area, which recognizes that the name of a law firm necessarily Identifies the
individual members of the firm. 7
6. The continued use of a deceased partner's name in the firm name of law partnerships
has been consistently allowed by U.S. Courts and is an accepted practice in the legal
profession of most countries in the world.8
The question involved in these Petitions first came under consideration by this Court in 1953
when a law firm in Cebu (the Deen case) continued its practice of including in its firm name
that of a deceased partner, C.D. Johnston. The matter was resolved with this Court advising
the firm to desist from including in their firm designation the name of C. D. Johnston, who
has long been dead."
The same issue was raised before this Court in 1958 as an incident in G. R. No. L-11964,
entitled Register of Deeds of Manila vs. China Banking Corporation. The law firm of Perkins
& Ponce Enrile moved to intervene as amicus curiae. Before acting thereon, the Court, in a
Resolution of April 15, 1957, stated that it "would like to be informed why the name of
Perkins is still being used although Atty. E. A. Perkins is already dead." In a Manifestation
dated May 21, 1957, the law firm of Perkins and Ponce Enrile, raising substantially the
same arguments as those now being raised by petitioners, prayed that the continued use of
the firm name "Perkins & Ponce Enrile" be held proper.
On June 16, 1958, this Court resolved: têñ.£îhqwâ£
After carefully considering the reasons given by Attorneys Alfonso Ponce
Enrile and Associates for their continued use of the name of the deceased
E. G. Perkins, the Court found no reason to depart from the policy it
adopted in June 1953 when it required Attorneys Alfred P. Deen and
Eddy A. Deen of Cebu City to desist from including in their firm
designation, the name of C. D. Johnston, deceased. The Court believes
that, in view of the personal and confidential nature of the relations
between attorney and client, and the high standards demanded in the
canons of professional ethics, no practice should be allowed which even
in a remote degree could give rise to the possibility of deception. Said
attorneys are accordingly advised to drop the name "PERKINS" from their
firm name.
Petitioners herein now seek a re-examination of the policy thus far enunciated by the Court.
The Court finds no sufficient reason to depart from the rulings thus laid down.
A. Inasmuch as "Sycip, Salazar, Feliciano, Hernandez and Castillo" and "Ozaeta, Romulo,
De Leon, Mabanta and Reyes" are partnerships, the use in their partnership names of the
names of deceased partners will run counter to Article 1815 of the Civil Code which
provides: têñ.£îhqwâ£
Art. 1815. Every partnership shall operate under a firm name, which may
or may not include the name of one or more of the partners.
Those who, not being members of the partnership, include their names in
the firm name, shall be subject to the liability, of a partner.
It is clearly tacit in the above provision that names in a firm name of a partnership must
either be those of living partners and. in the case of non-partners, should be living persons
who can be subjected to liability. In fact, Article 1825 of the Civil Code prohibits a third
person from including his name in the firm name under pain of assuming the liability of a
partner. The heirs of a deceased partner in a law firm cannot be held liable as the old
members to the creditors of a firm particularly where they are non-lawyers. Thus, Canon 34
of the Canons of Professional Ethics "prohibits an agreement for the payment to the widow
and heirs of a deceased lawyer of a percentage, either gross or net, of the fees received
from the future business of the deceased lawyer's clients, both because the recipients of
such division are not lawyers and because such payments will not represent service or
responsibility on the part of the recipient. " Accordingly, neither the widow nor the heirs can
be held liable for transactions entered into after the death of their lawyer-predecessor.
There being no benefits accruing, there ran be no corresponding liability.
Prescinding the law, there could be practical objections to allowing the use by law firms of
the names of deceased partners. The public relations value of the use of an old firm name
can tend to create undue advantages and disadvantages in the practice of the profession.
An able lawyer without connections will have to make a name for himself starting from
scratch. Another able lawyer, who can join an old firm, can initially ride on that old firm's
reputation established by deceased partners.
B. In regards to the last paragraph of Article 1840 of the Civil Code cited by
petitioners, supra, the first factor to consider is that it is within Chapter 3 of Title IX of the
Code entitled "Dissolution and Winding Up." The Article primarily deals with the exemption
from liability in cases of a dissolved partnership, of the individual property of the deceased
partner for debts contracted by the person or partnership which continues
the business using the partnership name or the name of the deceased partner as part
thereof. What the law contemplates therein is a hold-over situation preparatory to formal
reorganization.
Secondly, Article 1840 treats more of a commercial partnership with a good will to protect
rather than of a professional partnership, with no saleable good will but whose reputation
depends on the personal qualifications of its individual members. Thus, it has been held that
a saleable goodwill can exist only in a commercial partnership and cannot arise in a
professional partnership consisting of lawyers. 9têñ.£îhqwâ£
As a general rule, upon the dissolution of a commercial partnership the
succeeding partners or parties have the right to carry on the business
under the old name, in the absence of a stipulation forbidding it, (s)ince
the name of a commercial partnership is a partnership asset inseparable
from the good will of the firm. ... (60 Am Jur 2d, s 204, p. 115) (Emphasis
supplied)
On the other hand, têñ.£îhqwâ£
... a professional partnership the reputation of which depends or; the
individual skill of the members, such as partnerships of attorneys or
physicians, has no good win to be distributed as a firm asset on its
dissolution, however intrinsically valuable such skill and reputation may
be, especially where there is no provision in the partnership agreement
relating to good will as an asset. ... (ibid, s 203, p. 115) (Emphasis
supplied)
C. A partnership for the practice of law cannot be likened to partnerships formed by other
professionals or for business. For one thing, the law on accountancy specifically allows the
use of a trade name in connection with the practice of accountancy. 10 têñ.£îhqwâ£
A partnership for the practice of law is not a legal entity. It is a mere
relationship or association for a particular purpose. ... It is not a
partnership formed for the purpose of carrying on trade or business or of
holding property." 11 Thus, it has been stated that "the use of a nom de
plume, assumed or trade name in law practice is improper. 12
The usual reason given for different standards of conduct being
applicable to the practice of law from those pertaining to business is that
the law is a profession.
Dean Pound, in his recently published contribution to the Survey of the
Legal Profession, (The Lawyer from Antiquity to Modern Times, p. 5)
defines a profession as "a group of men pursuing a learned art as a
common calling in the spirit of public service, — no less a public service
because it may incidentally be a means of livelihood."
xxx xxx xxx
Primary characteristics which distinguish the legal profession from
business are:
1. A duty of public service, of which the emolument is a byproduct, and in
which one may attain the highest eminence without making much money.
2. A relation as an "officer of court" to the administration of justice
involving thorough sincerity, integrity, and reliability.
3. A relation to clients in the highest degree fiduciary.
4. A relation to colleagues at the bar characterized by candor, fairness,
and unwillingness to resort to current business methods of advertising
and encroachment on their practice, or dealing directly with their clients. 13
"The right to practice law is not a natural or constitutional right but is in the nature of a
privilege or franchise. 14 It is limited to persons of good moral character with special
qualifications duly ascertained and certified. 15 The right does not only presuppose in its
possessor integrity, legal standing and attainment, but also the exercise of a special
privilege, highly personal and partaking of the nature of a public trust." 16
D. Petitioners cited Canon 33 of the Canons of Professional Ethics of the American Bar
Association" in support of their petitions.
It is true that Canon 33 does not consider as unethical the continued use of the name of a
deceased or former partner in the firm name of a law partnership when such a practice
is permissible by local custom but the Canon warns that care should be taken that no
imposition or deception is practiced through this use.
It must be conceded that in the Philippines, no local custom permits or allows the continued
use of a deceased or former partner's name in the firm names of law partnerships. Firm
names, under our custom, Identify the more active and/or more senior members or partners
of the law firm. A glimpse at the history of the firms of petitioners and of other law firms in
this country would show how their firm names have evolved and changed from time to time
as the composition of the partnership changed. têñ.£îhqwâ£
The continued use of a firm name after the death of one or more of the
partners designated by it is proper only where sustained by local custom
and not where by custom this purports to Identify the active members. ...
There would seem to be a question, under the working of the Canon, as
to the propriety of adding the name of a new partner and at the same time
retaining that of a deceased partner who was never a partner with the
new one. (H.S. Drinker, op. cit., supra, at pp. 207208) (Emphasis
supplied).
The possibility of deception upon the public, real or consequential, where the name of a
deceased partner continues to be used cannot be ruled out. A person in search of legal
counsel might be guided by the familiar ring of a distinguished name appearing in a firm
title.
E. Petitioners argue that U.S. Courts have consistently allowed the continued use of a
deceased partner's name in the firm name of law partnerships. But that is so because it is
sanctioned by custom.
In the case of Mendelsohn v. Equitable Life Assurance Society (33 N.Y.S. 2d 733) which
petitioners Salazar, et al. quoted in their memorandum, the New York Supreme Court
sustained the use of the firm name Alexander & Green even if none of the present ten or corn. There should be no such thing as a lawyers' or physicians' strike.
partners of the firm bears either name because the practice was sanctioned by custom and The best service of the professional man is often rendered for no
did not offend any statutory provision or legislative policy and was adopted by agreement of equivalent or for a trifling equivalent and it is his pride to do what he does
the parties. The Court stated therein: têñ.£îhqw⣠in a way worthy of his profession even if done with no expectation of
The practice sought to be proscribed has the sanction of custom and reward, This spirit of public service in which the profession of law is and
offends no statutory provision or legislative policy. Canon 33 of the ought to be exercised is a prerequisite of sound administration of justice
Canons of Professional Ethics of both the American Bar Association and according to law. The other two elements of a profession, namely,
the New York State Bar Association provides in part as follows: "The organization and pursuit of a learned art have their justification in that they
continued use of the name of a deceased or former partner, when secure and maintain that spirit. 25
permissible by local custom is not unethical, but care should be taken that In fine, petitioners' desire to preserve the Identity of their firms in the eyes of the public must
no imposition or deception is practiced through this use." There is no bow to legal and ethical impediment.
question as to local custom. Many firms in the city use the names of ACCORDINGLY, the petitions filed herein are denied and petitioners advised to drop the
deceased members with the approval of other attorneys, bar associations names "SYCIP" and "OZAETA" from their respective firm names. Those names may,
and the courts. The Appellate Division of the First Department has however, be included in the listing of individuals who have been partners in their firms
considered the matter and reached The conclusion that such practice indicating the years during which they served as such.
should not be prohibited. (Emphasis supplied) SO ORDERED.
xxx xxx xxx Teehankee, Concepcion, Jr., Santos, Fernandez, Guerrero and De Castro, JJ., concur
Neither the Partnership Law nor the Penal Law prohibits the practice in Fernando, C.J. and Abad Santos, J., took no part.
question. The use of the firm name herein is also sustainable by reason of
agreement between the partners. 18
Not so in this jurisdiction where there is no local custom that sanctions the practice. Custom
has been defined as a rule of conduct formed by repetition of acts, uniformly observed
(practiced) as a social rule, legally binding and obligatory. 19 Courts take no judicial notice of
custom. A custom must be proved as a fact, according to the rules of evidence. 20 A local
custom as a source of right cannot be considered by a court of justice unless such custom
is properly established by competent evidence like any other fact. 21 We find such proof of
the existence of a local custom, and of the elements requisite to constitute the same,
wanting herein. Merely because something is done as a matter of practice does not mean
that Courts can rely on the same for purposes of adjudication as a juridical custom. Juridical
custom must be differentiated from social custom. The former can supplement statutory law
or be applied in the absence of such statute. Not so with the latter.
Moreover, judicial decisions applying or interpreting the laws form part of the legal
system. 22 When the Supreme Court in the Deen and Perkins cases issued its Resolutions
directing lawyers to desist from including the names of deceased partners in their firm
designation, it laid down a legal rule against which no custom or practice to the contrary,
even if proven, can prevail. This is not to speak of our civil law which clearly ordains that a
partnership is dissolved by the death of any partner. 23 Custom which are contrary to law,
public order or public policy shall not be countenanced. 24
The practice of law is intimately and peculiarly related to the administration of justice and
should not be considered like an ordinary "money-making trade." têñ.£îhqwâ£
... It is of the essence of a profession that it is practiced in a spirit of public
service. A trade ... aims primarily at personal gain; a profession at the
exercise of powers beneficial to mankind. If, as in the era of wide free
opportunity, we think of free competitive self assertion as the highest
good, lawyer and grocer and farmer may seem to be freely competing
with their fellows in their calling in order each to acquire as much of the
world's good as he may within the allowed him by law. But the member of
a profession does not regard himself as in competition with his
professional brethren. He is not bartering his services as is the artisan nor
exchanging the products of his skill and learning as the farmer sells wheat
G.R. No. 143687 July 31, 2001
SPOUSES RAMON ESTANISLAO, JR. and DINA TEOTICO ESTANISLAO, petitioners,
vs.
COURT OF APPEALS, HI-YIELD REALTY, INC., HUMBERTO BASCO, and NORBERTO
VASQUEZ,respondents.
MENDOZA, J.:
This is a petition for review of the decision,1 dated March 20, 2000, of the Court of Appeals,
affirming the decision of the Regional Trial Court; Branch 128, Caloocan City, which
dismissed petitioners' complaint for annulment of private respondent Hi-Yield Realty, Inc.'s
title and instead ordered petitioners to pay damages and attorney's fees to private
respondents, and the appeals court's resolution,2 dated June 20, 2000, denying petitioners'
motion for reconsideration.
The antecedent facts are as follows:
In 1985, spouses Ramon Estanislao, Jr. and Dina Teotico Estanislao, petitioners herein,
mortgaged to respondent Hi-Yield Realty, Inc. a parcel of land, registered in their name
under TCT No. 120717, together with the buildings and improvements thereon. The
mortgage was constituted to secure a loan of P200,000.00. For petitioners' failure to comply
with some of its conditions, the mortgage was extra-judicially foreclosed and the property
was sold on December 9, 1988 for P445,000.00 to Hi-Yield Realty, Inc. as the highest
bidder. The Certificate of Sale issued to the highest bidder was registered with the Registry
of Deeds of Caloocan City on June 9, 1992.
On June 4, 1993, petitioner Ramon Estanislao, Jr. offered to redeem the property by
tendering to Atty. Humberto Basco, the notary public who conducted the sale, a PCIB
manager's check in the amount of P445,000.00 (Exh. E). The amount covered the auction
price alone as petitioner Estanislao allegedly did not know the amount of interest and other
charges/assessments. In his letter of June 4, 1993 enclosing the manager's check,
petitioner Estanislao requested that a purchaser's statement of interest and other charges
be furnished to him.
However, on June 15, 1993, Atty. Basco returned the PCIB check to petitioner Estanislao
on the ground that its amount did not include the interests, charges, and penalties. In his
letter (Exh. G; Exh. 24), Atty. Basco stated that no certificate of redemption could be issued
unless the amount was fully paid and settled.
Without waiting for purchaser's statement of interest and other charges which he had
requested, petitioner Estanislao again tendered to private respondents on June 21, 1993
the PCIB check for P445,000.00 and another PCIB manager's check (Exh. H) for
P81,521.27 to cover the interest. The checks were, however, rejected by private
respondents for being inadequate.
On July 14, 1993, petitioner Estanislao found from the records of the Registry of Deeds of
Caloocan City that their property had been transferred in the name of private respondent Hi-
Yield Realty, Inc. The Affidavit of Consolidation of Ownership, dated June 10, 1993 (Exh. I),
was notarized by Atty. Basco and filed with the Registry of Deeds on June 14, 1993. On
June 15, 1993, private respondent Norberto Vasquez, Acting Registrar of Deeds, ordered
the annotation of the Affidavit of Consolidation of Ownership, the cancellation of TCT No.
120717 (Exh. A), and the issuance of TCT No. 265782 (Exh. J) in the name of Hi-Yield
Realty, Inc.
On August 13, 1993, petitioner spouses brought suit against private respondents in the
Regional Trial Court of Caloocan City, seeking the annulment of the Affidavit of
Consolidation of Ownership, the cancellation of TCT No. 265782, and the payment of
damages and attorney's fees.
On December 7, 1995, the Regional Trial Court, Branch 128, Caloocan City, dismissed
petitioners' suit and ordered them to pay damages to private respondents. The dispositive
portion of its decision reads:
WHEREFORE, in view of the foregoing premises, this Court decides in favor of
defendants and ordering plaintiff-spouses Ramon Estanislao, Jr. and Dina Teotico
Estanislao the following:
1. To pay defendant Norberto Vasquez P50,000.00 as moral damages and
P20,000.00 as attorney's fees;
2. To pay defendant Hi-Yield Realty, Inc. P20,000.00 as attorney's fees; and
3. To pay defendant Humberto B. Basco P20,000.00 as attorney's fees.
Cost against the plaintiff.
SO ORDERED.3
Petitioners appealed to the Court of Appeals which rendered a decision on March 20, 2000
affirming in toto the decision of the trial court. On June 20, 2000, it denied petitioners'
motion for reconsideration. Hence, this petition for review on certiorari.
Petitioners contend that the respondent Court of Appeals erred:
41.1. when it made findings and conclusions in its Decision not within the issues
raised before the trial court, and not supported by the evidence on record;
41.2. when it erroneously included as part of the redemption price the "other
charges" (taxes and assessments) although the petitioner was not aware thereof,
and no notice of taxes and assessment was filed with the Registry of Deeds;
 41.3. when it had evidently and utterly disregarded the doctrines laid down by this
Honorable Court in the cases of Rosario vs. Tayug Rural Bank, Inc., 22 SCRA
1220, and Castillo vs. Nagtalon, 4 SCRA 48, as regards liberal interpretation of
redemption rules, without even discussing, even in passing, why those cases
decided by this Honorable court are not applicable in the case at bar;
41.4. when it also absolutely disregarded the doctrine laid down by this Honorable
Court in the case of Rosales vs. Yboa, 120 SCRA 869, that interests of 1%
monthly on the redemption price shall commence to run only from the date of
registration of the certificate of sale, also without discussing, even in passing, why
the said case is not applicable in the case at bar;
41.5. when it misapplied the case of Conejero, et al. vs. Court of Appeals, et al., 16
SCRA 775, apropos the necessity of consigning the redemption price, in the case
at bar;
41.6. when it ruled that the appellants failed to present any evidence whatsoever in
support of the allegation of "fraudulent collusion and unholy alliance" among the
defendants-appellees with respect to the registration of the Affidavit of
Consolidation of Ownership and the issuance of the new TCT in favor of Hi-Yield
Realty;
41.7. when it awarded moral damages and attorney's fees in favor of the
respondents contrary to the prevailing jurisprudence; and
41.8. when it failed to grant the relief prayed for by the petitioners including
damages and attorney's fees.4
We find the petition to be without merit.
First. Section 6 of Act No. 3135 provides:
In all cases in which an extrajudicial sale is made under the special power
hereinbefore referred to, the debtor, his successors in interest or any judicial
creditor or judgment creditor of said debtor, or any person having a lien on the
property subsequent to the mortgage or deed of trust under which the property is
sold, may redeem the same at any time within the term of one year from and after
the date of the sale; and such redemption shall be governed by the provisions of
sections four hundred and sixty-four to four hundred and sixty-six, inclusive, of the
Code of Civil Procedure, in so far as these are not inconsistent with the provisions
of this Act.5
The references to §§464-466 of the Code of Civil Procedure must be understood to be to
§§29-31 of Rule 39 of the 1964 Rules of Court, which was the applicable law at the time
material to this case. It will be noted that while Act No. 3135, §6 speaks of the right of a
debtor to redeem property sold at auction sale in extrajudicial foreclosure of mortgage
"within the term of one year from and after the date of the sale," which means within a
period of 365 days, Rule 39, §30 of the 1964 Rules of Court spoke of the right of a judgment
debtor to redeem property sold at auction "within twelve (12) months after the sale," which
means within 360 days on the basis of 30 days in a month. This is because Art. 13 of the
Civil Code provides that "When the laws speak 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." The discrepancy was
corrected in Rule 39, §28 of the 1997 Rules of Court, effective July 1, 1997, which changed
the period from "twelve (12) months" to "one (1) year."
Although the prevailing law at the time of the auction sale in this case was the 1964 Rules of
Court, the question is actually merely of academic interest in this case, because even if the
period of redemption is 365 days, the tender of the full redemption price made by petitioners
on June 21, 1993 was 12 days late counted from the expiration of the redemption period on
June 9, 1993.
The right of redemption should be exercised within the period prescribed by law. As
explained by this Court in Basbas v. Entena:6
. . . [T]he right of legal redemption must be exercised within specified time limits;
and the statutory periods would be rendered meaningless and of easy evasion
unless the redemptioner is required to make an actual tender in good faith of what
he believed to be the reasonable price of the land sought to be redeemed. The
existence of the right of redemption operates to depress the market value of the
land until the period expires, and to render that period indefinite by permitting the
tenant to file a suit for redemption, with either party unable to foresee when final
judgment will terminate the action, would render nugatory the period of two years
fixed by the statute for making the redemption and virtually paralyze any efforts of
the landowner to realize the value of his land. No buyer can be expected to acquire
it without any certainty as to the amount for which it may be redeemed, so that he
can recover at least his investment in case of redemption. In the meantime, the
landowner's needs and obligations cannot be met. It is doubtful if any such result
was intended by the statute, absent clear wording to that effect.
Moreover, the tender of payment must be for the full amount of the purchase price.
Otherwise, to allow payment by installments would be to allow the indefinite extension of the
redemption period.7 Consequently, the payment tendered by petitioners on June 4, 1993,
while made within the period of redemption (365 days), was ineffective since the amount
offered did not include the interest but was limited to the purchase price.
Indeed, Rule 39, §30 of the 1964 Rules of Court (now Rule 39, §28 of the 1997 Rules of
Civil Procedure) provided:
The judgment debtor, or redemptioner, may redeem the property from the
purchaser, at any time within twelve (12) months after the sale, on paying the
purchaser the amount of his purchase, with one per centum per month interest
thereon in addition, up to the time of redemption, together with the amount of any
assessment or taxes which the purchaser may have paid thereon after purchase,
and interest on such last-named amount at the same rate . . .
 Written notice of any redemption must be given to the officer who made the sale
and a duplicate filed with the registrar of deeds of the province, and if any
assessments or taxes are paid by the redemptioner or if he has or acquires any
lien other than that upon which the redemption was made, notice thereof must in
like manner be given to the officer and filed with the registrar of deeds; if such
notice be not filed, the property may be redeemed without paying such
assessments, taxes, or liens.
In Bodiongan v. Court of Appeals,8 it was held:
In order to effect a redemption, the judgment debtor must pay the purchaser the
redemption price composed of the following: (1) the price which the purchaser paid
for the property; (2) interest of 1% per month on the purchase price; (3) the amount
of any assessments or taxes which the purchaser may have paid on the property
after the purchase; and (4) interest of 1% per month on such assessments and
taxes . . .
The appellate court erred in ruling that the interest due from the mortgage was
P240,300.00, at one percent monthly interest of the auction price of P445,000.00, computed
from the date of sale on June 9, 1988 [December 9, 1988]. The interest on the auction price
should be computed not from the date of the sale, as the appeals court appears to have
done, but from the registration thereof. Since the period of redemption begins only from the
date of the registration of the certificate of sale in the Registry of Deeds, the computation of
the interest on the purchase price should also be made to commence from that
date.9 Hence, the interest due on the auction price for 12 months, i.e., from June 9, 1992 to
June 9, 1993, is only P53,400.00 (P445,000.00 x 1% x 12 months) and the amount of
P81,521.27, which petitioners tendered on June 21, 1993, was in excess of the accrued
interest due. Nevertheless, as the tender of payment of the interest and the purchase price
of P445,000.00 was late, such tender did not effect a valid redemption.
There are additional amounts to be made in order to effect a valid redemption required by
law, but, as respondent Hi-Yield Realty, Inc. failed to comply with certain requirements,
petitioners' failure to pay these additional amounts may be considered excused. As provided
in Rule 39, §30 of the 1964 Rules of Court, the redemptioner must also pay the assessment
or taxes paid by the purchaser. However, the latter must give notice to the officer who
conducted the sale of the assessments or taxes paid by him and file the same with the
Registry of Deeds. In fact, the Certificate of Sale, (Exh. C; Exh. 3) issued to Hi-Yield Realty,
Inc. in this case clearly stated:
It is hereby required of said highest bidder that a statement of any amount of
assessment or taxes, which may have been paid on account of this purchase, and
such other liens chargeable to a redemptioner, WITH PROOFS THEREOF, all in
accordance with Sec. 30, Rule 39 of the New Rules of Court [now §28 of Rule 39
of the 1997 Rules of Civil Procedure], should be submitted to this Office, for
purposes of computing the actual amount payable by
MORTGAGORS/REDEMPTIONERS, in case of redemption.10
If no such notice is given, the property may be redeemed without paying such assessments
or taxes.
Petitioners were not furnished by respondent Hi-Yield Realty, Inc. such statement of
account.11 Neither was such statement filed with the Registry of Deeds. Respondent Hi-
Yield Realty, Inc. claimed that a statement of account (Exh. 8-C and Exh. 8-D) was
furnished the office of Atty. Basco, the notary public who had conducted the sale, as
received by Elizabeth Roque, an employee therein.12 However, Atty. Basco denied having
received the statement.13Petitioners were therefore justified in not paying any assessments
or taxes which respondent Hi-Yield Realty, Inc. may have paid.
Second. Petitioners accuse private respondents of "fraudulent collusion and unholy alliance"
in the registration of the Affidavit of Consolidation of Ownership and the issuance of the new
TCT to Hi-Yield Realty, Inc. We find this allegation to be without basis. As already stated,
the period of redemption expired on June 9, 1993 without petitioners being able to pay the
purchase price plus the interest required by Rule 39, §30 of the 1964 Rules of Court.
Hence, the consolidation of ownership in the purchaser was justified.
Moreover, the records show that Atty. Vasquez, who was at the time Acting Registrar of
Deeds of Caloocan City, approved the registration of the Affidavit of Consolidation of
Ownership filed by the purchaser Hi-Yield Realty, Inc. on June 14, 1993 upon payment by
the latter of the registration fee.14 This was five days after the expiration of redemption
period on June 9, 1993.15 Atty. Vasquez denied knowing any of the persons connected with
Hi-Yield Realty, Inc. or Atty. Basco and that he only met them for the first time during the
pre-trial.16 For his part, Atty. Manuel Soriano, Jr., who is the president and chairman of the
board of Hi-Yield Realty, Inc., testified that he does not personally know Atty. Vasquez, and
that he never went to the Registry of Deeds since a company employee usually took care of
the registration process.17
On the other hand, we find no basis for the award of moral damages to private respondents.
The law presumes good faith, and any person who seeks an award of damages due to acts
of another has the burden of proving that the latter acted in bad faith or with ill motive.18 It is
not enough that one says he suffered mental anguish, serious anxiety, social humiliation,
wounded feelings, and the like as a result of the actuations of the other party. 19 Proof of
moral suffering must be introduced, otherwise the award for moral damages is not
proper.20 In this case, the evidence presented by private respondents is insufficient to
overcome the presumption of good faith.
Nor can the award of attorney's fees be sustained in the light of the policy that no premium
should be placed on the right to litigate.21 No penalty should be imposed on those who
exercise such right in good faith, even though erroneously. 22 The fact that private
respondents incurred expenses to protect their rights does not necessarily imply that the
action which they were opposing was instituted in bad faith. The award of attorney's fees
must be deleted where the award of moral and exemplary damages are eliminated. 23
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the MODIFICATION
that the award of moral damages and attorney's fees to private respondents is deleted.
SO ORDERED.
Bellosillo, Quisumbing and De Leon, Jr., JJ ., concur.
Buena, J ., abroad.
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.1äwphï1.ñët
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.1äwphï1.ñët
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.3 Appellants' 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, Congress deleted 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.
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:
I
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.
V 1953. (pp. 2-3)
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. 1äwphï1.ñët
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,
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 the renvoi, 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 renvoi is 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 the renvoi 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.
G.R. No. 144054 June 30, 2006
NIEVES A. SAGUIGUIT, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
Assailed and sought to be set aside in this petition for review under Rule 45 of the Rules of
Court is the Decision1dated June 28, 2000 of the Court of Appeals (CA) in CA-G.R. CR No.
22180, affirming the decision rendered by the Regional Trial Court (RTC) of Angeles City
convicting herein petitioner Nieves Saguiguit of violation (eight [8] counts) of Batas
Pambansa (B.P.) Blg. 22, otherwise known as the Bouncing Checks Law.
The facts:
In eight (8) separate informations filed with the RTC of Angeles City, thereat docketed as
Criminal Case Nos. 94-03-226 to 94-03-233, petitioner was charged with violations of the
Bouncing Checks Law. All containing identical allegations as to the elements of the offense
charged and differing only as regards the respective amounts and due dates of the check
involved in each case, the eight (8) informations uniformly alleged:
"That on or about the 1st week of April, 1991, in the City of Angeles, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, did then and there
willfully, unlawfully and feloniously draw and issue to the complainant MR. ELMER
EVANGELISTA a Traders Royal Bank Check No._________________, in the amount of
_________________, dated _________________, 1991, well knowing and without
informing the complainant that she has no sufficient funds with the drawee bank, which
check when deposited for payment was dishonored for reason "ACCOUNT CLOSED" and
demand notwithstanding for more than five (5) days from notice of dishonor, the accused
failed and refused and still fails and refuses to redeem the said check to the damage and
prejudice of the complainant ELMER EVANGELISTA in the afore-mentioned amount of
________________, Philippine Currency".
After trial, the RTC, in a decision dated March 16, 1998, adjudged petitioner guilty as
charged in each information and accordingly sentenced her to suffer imprisonment and pay
fine and to indemnify private complainant, thus:
1. In Crim. Case No. 94-03-226, one (1) year imprisonment and to pay a fine of
P26,500.00 with subsidiary imprisonment in case of insolvency, to indemnify the
complainant the amount of P26,500.00 and to pay the cost;
2. In Crim. Case No. 94-03-227, one (1) year imprisonment and to pay a fine of
P28,000.00 with subsidiary imprisonment in case of insolvency, to indemnify the
complainant the amount of P28,000.00 and to pay the cost;
3. In Crim. Case No. 94-03-228, one (1) year imprisonment and to pay a fine of
P21,500.00 with subsidiary imprisonment in case of insolvency, to indemnify the
complainant the amount of P21,500.00 and to pay the cost;
4. In Crim. Case No. 94-03-229, one (1) year imprisonment and to pay a fine of
P20,000.00 with subsidiary imprisonment in case of insolvency, to indemnify the
complainant the amount of P20,000.00 and to pay the cost;
5. In Crim. Case No. 94-03-230, one (1) year imprisonment and to pay a fine of
P21,500.00 with subsidiary imprisonment in case of insolvency, to indemnify the
complainant the amount of P21,500.00 and to pay the cost;
6. In Crim. Case No. 94-03-231, one (1) year imprisonment and to pay a fine of
P21,500.00 with subsidiary imprisonment in case of insolvency, to indemnify the
complainant the amount of P21,500.00 and to pay the cost;
7. In Crim. Case No. 94-03-232, one (1) year imprisonment and to pay a fine of
P21,500.00 with subsidiary imprisonment in case of insolvency, to indemnify the
complainant the amount of P21,500.00 and to pay the cost; and
8. In Crim. Case No. 94-03-233, one (1) year imprisonment and to pay a fine of
P22,500.00 with subsidiary imprisonment in case of insolvency, to indemnify the
complainant the amount of P22,500.00 and to pay the cost. 2
Unable to accept the verdict of guilt, petitioner went on appeal to the CA whereat her
appellate recourse was docketed as CA-G.R. CR NO. 22180. In the herein assailed
Decision dated June 28, 2000, the appellate court affirmed that of the trial court:
WHEREFORE, premises considered, the decision dated March 16, 1998 rendered by the
court a quo is hereby AFFIRMED with costs against the appellant (herein petitioner).
SO ORDERED.3
Undaunted, petitioner interposed the instant recourse urging the Court not only to review the
factual determinations of the CA, but also to reexamine extant jurisprudence on the
Bouncing Checks Law. As the petitioner would put it:
The instant case calls for a reexamination and modification, if not abandonment, of rulings
to the effect that the mere issuance of a check which is subsequently dishonored makes the
issuer liable for violation of BP Blg. 22 regardless of the intent of the parties …. Petitioner
respectfully submits that it was not the intention of the lawmaking body, … to make the
issuance of a bum check ipso facto a criminal offense already; there must be an intent to
commit the prohibited act, and subject check should be issued to apply on account or for
value.
This case also calls for a review of the findings of the facts of the CA, as and by way of
exception to the rule that only questions of law may be raised in a petition for review under
Rule 45 …. Petitioner humbly submits that the CA's findings of fact are not supported by
evidence and differ from those of the [RTC]. xxx 4 (Underscoring in the original; citation
omitted.)
The petition is devoid of merit.
At its most basic, what the petitioner asks is for the Court to delve into the policy behind or
wisdom of a statute, i.e., B.P. Blg. 22, which, under the doctrine of separation of powers, it
cannot do, matters of legislative wisdom being within the domain of Congress. 5 Even with
the best of motives, the Court can only interpret and apply the law and cannot, despite
doubts about its wisdom, amend or repeal it. Courts of justice have no right to encroach on
the prerogatives of lawmakers, as long as it has not been shown that they have acted with
grave abuse of discretion. And while the judiciary may interpret laws and evaluate them for
constitutional soundness and to strike them down if they are proven to be infirm, this solemn
power and duty do not include the discretion to correct by reading into the law what is not
written therein.6
Here, petitioner makes no attempt to challenge the constitutionality of the Bouncing Checks
Law. At bottom, then, petitioner's last and only remaining remedy is to seek an amendment
of the law in question, a matter which should be addressed to Congress no less. For at the
end of the day, the legislature is the primary judge of the necessity, adequacy, wisdom,
reasonableness and expediency of any law.7
xxx Under our system of government where powers are allocated to the three (3) great
branches, only the Legislature can remedy such deficiency [in the law], if any, by proper
amendment…. 8 (Words in bracket added).
Petitioner likewise calls for "modification, if not abandonment" of the rulings that hold issuers
of bad checks liable under the Bouncing Checks Law regardless of intent. 9
The call must fall.
Judicial decisions applying or interpreting laws shall form a part of the legal system of the
Philippines.10 Stare decisis et non quieta movere. Let the decision stand and disturb not
what is already settled. The doctrine of stare decisis is a salutary and necessary rule. When
the Court lays down a principle of law applicable to a certain set of facts, it must adhere to
such principle and apply it to all future cases where the facts in issue are substantially the
same.11 Else, the ideal of a stable jurisprudential system can never be achieved.
Specifically, the principle underlying the concept of mala prohibita is the stare decisis
governing a long history of cases involving violations of the Bouncing Checks Law.
xxx [T]he gravamen of the offense is the act of making and issuing a worthless check or any
check that is dishonored upon its presentment for payment and putting them in circulation.
…. The law was designed to prohibit and altogether eliminate the deleterious and pernicious
practice of issuing checks with insufficient or no credit or funds therefor. Such practice is
deemed a public nuisance, a crime against public order to be abated. The mere act of
issuing a worthless check, is covered by B.P. 22. It is a crime classified as malum
prohibitum. xxx.
The effects of the issuance of a worthless check transcends the private interests of the
parties …. The mischief it creates is not only a wrong to the payee or holder, but also an
injury to the public. The harmful practice of putting valueless commercial papers in
circulation, multiplied a thousandfold, can very well pollute the channels of trade and
commerce, injure the banking system and eventually hurt the welfare of society and the
public interest. xxx. –
xxx xxx xxx
It bears stressing that, whether a person is an accommodation party is a question of intent.
When the intent of the parties does not appear on the face of the check, it must be
ascertained in the light of the surrounding facts and circumstances. Invariably, the tests
applied are the purpose test and the proceeds test. xxx. What the law punishes is the
issuance itself of a bouncing check and not the purpose for which it was issued or of the
terms and conditions relating to its issuance. The mere act of issuing a worthless check,
whether merely as an accommodation, is covered by B.P. 22. Hence, the agreement
surrounding the issuance of a check is irrelevant to the prosecution and conviction of the
petitioner. xxx.12
Neither can the Court grant petitioner's "call for review of the findings of the facts of the
CA." 13 We need not belabor the basic rule that the Court is not a trier of facts.
Moreover, granting arguendo that petitioner's version of the facts is true – that her
transaction was only with a certain Bernadette Montes and not with private complainant
Elmer Evangelista – the hard fact remains that she issued eight (8) bouncing checks that
went into circulation. In net effect, what she did was to borrow from Ruiz, to pollute the
channels of trade and commerce, injuring the banking system, and eventually hurting the
welfare of society and the public interest.
Finally, while we affirm petitioner's conviction, we deem it proper to modify the penalty
imposed by the trial court and effectively sustained by the CA, pursuant to the policy
established under Supreme Court (SC) Administrative Circular No. 12-2000 dated
November 21, 2000, on the subject: PENALTY FOR VIOLATION OF [BP] Blg. 22, as
clarified in SC Administrative Circular No. 13-2001 dated February 14, 2001, pertinently
reading as follows:
SC Administrative Circular No. 12-2000
Section 1 of B.P. Blg. 22 … imposes the penalty of imprisonment of not less than thirty (30)
days but not more than one (1) year OR a fine of not less than but not more than double the
amount of the check, which fine shall in no case exceed P200,000, OR both such fine and
imprisonment at the discretion of the court.
In its decision in Eduardo Vaca v. Court of Appeals (G.R. No. 131714, 16 November 1998,
298 SCRA 656, 664) the Supreme Court … modified the sentence imposed for violation of
B.P. Blg. 22 by deleting the penalty of imprisonment and imposing only the penalty of fine in
an amount double the amount of the check. In justification thereof, the Court said:
Petitioner are first-time offenders. They are Filipino entrepreneurs who presumably
contribute to the national economy. Apparently, they brought this appeal, believing in all
good faith, although mistakenly that they had not committed a violation of B.P. Blg. 22.
Otherwise they could simply have accepted the judgment of the trial court and applied for
probation to evade a prison term. It would best serve the ends of criminal justice if in fixing
the penalty within the range of discretion allowed by §1, par. 1, the same philosophy
underlying the Indeterminate Sentence Law is observed, namely, that of redeeming
valuable human material and preventing unnecessary deprivation of personal liberty and
economic usefulness with due regard to the protection of the social order. In this case we
believe that a fine in an amount equal to double the amount of the check involved is an
appropriate penalty to impose on each of the petitioners.
In the recent case of Rosa Lim v. People of the Philippines … the Supreme Court En Banc,
applying Vaca also deleted the penalty of imprisonment and sentenced the drawer of the
bounced check to the maximum of the fine allowed by B.P. Blg. 22, xxx.. 14
SC Administrative Circular No. 13-2001
The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove
imprisonment as an alternative penalty, but to lay down a rule of preference in the
application of the penalties provided for in B.P. Blg. 22.
The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for
violations of B.P. Blg. 22. Neither does it defeat the legislative intent behind the law.
Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the application
of the penal provisions of B.P. Blg. 22 such that where the circumstances of both the
offense and the offender clearly indicate good faith or a clear mistake of fact without taint of
negligence, the imposition of a fine alone should be considered as the more appropriate
penalty. Needless to say, the determination of whether the circumstances warrant the
imposition of a fine alone rests solely upon the Judge. 15 Should the Judge decide that
imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought
not be deemed a hindrance. 16
It is, therefore, understood that:
1. Administrative Circular 12-2000 does not remove imprisonment as an alternative
penalty for violations of B.P. Blg. 22;
2. The Judges concerned may, in the exercise of sound discretion, and taking into
consideration the peculiar circumstances of each case, determine whether the
imposition of a fine alone would best serve the interests of justice or whether
forbearing to impose imprisonment would depreciate the seriousness of the
offense, work violence on the social order, or otherwise be contrary to the
imperatives of justice; 17
3. Should only a fine be imposed and the accused be unable to pay the fine, there
is no legal obstacle to the application of the Revised Penal Code provisions on
subsidiary imprisonment.
While the decisions of the trial court and that of the CA dated March 16, 1998 and June 28,
2000, respectively, were promulgated before SC Administrative Circular No. 12-2000 and its
subsequent clarificatory circular took effect, there is no legal impediment to their application
under the premises, favorable as they are to the accused. What is more, the pleadings
before us contain no indication that petitioner was a habitual delinquent or recidivist, a
circumstance strongly arguing for the application, as we did in Young v. Court of
Appeals,18 of the latest stare decisis towards modifying the penalties imposable herein. In
an earlier case likewise on all fours with this case, the Court held:
However, in view of [SC] Administrative Circular No. 12-2000, as clarified by Administrative
Circular No. 13-2001, establishing a rule of preference in the application of the penalties
provided for in B.P. Blg. 22; and the recommendation of the Solicitor General in its
Comment that the policy laid down in Vaca vs. Court of Appeals, 19and Lim vs. People,20 of
redeeming valuable human material and preventing unnecessary deprivation of personal
liberty and economic usefulness, be considered in favor of petitioner who is not shown to be
a habitual delinquent or a recidivist, we find that the penalty imposed by the Court of
Appeals should be modified by deleting the penalty of imprisonment and imposing only a
fine of xxx.21
WHEREFORE, the decision appealed from is AFFIRMED with MODIFICATION that
petitioner Nieves Saguiguit is hereby –
1) Sentenced to pay a FINE equivalent to double the amount of the check involved
in each of Criminal Cases Nos. 94-03-226 to 94-03-233 with subsidiary
imprisonment not to exceed six (6) months in each of said cases in the event of
insolvency, pursuant to paragraph 2, Article 39 of the Revised Penal Code; and
2) Indemnify the private complainant with the total amount of the subject checks
plus six percent (6%) interest from date of filing of the informations until finality of
this Decision, the amount of which, inclusive the interest, is subject to twelve
percent (12%) interest per annum until fully paid.
SO ORDERED.
 hearing letters of administration were issued to Apolonio Suntay. After the latter's death
Federico C. Suntay was appointed administrator of the estate. On 15 October 1934 the
surviving widow filed a petition in the Court of First Instance of Bulacan for the probate of a
last will and testament claimed to have been executed and signed in the Philippines on
November 1929 by the late Jose B. Suntay. This petition was denied because of the loss of
said will after the filing of the petition and before the hearing thereof and of the insufficiency
of the evidence to establish the loss of the said will. An appeal was taken from said order
denying the probate of the will and this Court held the evidence before the probate court
sufficient to prove the loss of the will and remanded the case to the Court of First Instance
of Bulacan for the further proceedings (63 Phil., 793). In spite of the fact that a commission
from the probate court was issued on 24 April 1937 for the taking of the deposition of Go
Toh, an attesting witness to the will, on 7 February 1938 the probate court denied a motion
for continuance of the hearing sent by cablegram from China by the surviving widow and
dismissed the petition. In the meantime the Pacific War supervened. After liberation,
claiming that he had found among the files, records and documents of his late father a will
and testament in Chinese characters executed and signed by the deceased on 4 January
1931 and that the same was filed, recorded and probated in the Amoy district court,
Province of Fookien, China, Silvino Suntay filed a petition in the intestate proceedings
praying for the probate of the will executed in the Philippines on November 1929 (Exhibit B)
or of the will executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit N).

There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria
Natividad Lim Billian are estopped from asking for the probate of the lost will or of the
G.R. Nos. L-3087 and L-3088 July 31, 1954 foreign will because of the transfer or assignment of their share right, title and interest in the
estate of the late Jose B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez
and Victoria Goño and the subsequent assignment thereof by the assignees to Francisco
In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitioner-
Pascual and by the latter to Federico C. Suntay, for the validity and legality of such
appellant,
assignments cannot be threshed out in this proceedings which is concerned only with the
vs.
probate of the will and testament executed in the Philippines on November 1929 or of the
In re: Intestate Estate of the deceased JOSE B. SUNTAY,
foreign will allegedly executed in Amoy on 4 January 1931 and claimed to have been
FEDERICO C. SUNTAY, administrator-appellee.
probated in the municipal district court of Amoy, Fookien province, Republic of China.

Claro M. Recto for appellant.

As to prescription, the dismissal of the petition for probate of the will on 7 February 1938
Sison and Aruego for appellee.
was no bar to the filing of this petition on 18 June 1947, or before the expiration of ten
years.
PADILLA, J.:
As to the lost will, section 6, Rule 77, provides:
This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the
alleged will and testament executed in Manila on November 1929, and the alleged last will
No will shall be proved as a lost or destroyed will unless the execution and validity
and testament executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay.
of the same be established, and the will is proved to have been in existence at the
The value of the estate left by the deceased is more than P50,000.
time of the death of the testator, or is shown to have been fraudulently or
accidentally destroyed in the lifetime of the testator without his knowledge, nor
On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in unless its provisions are clearly and distinctly proved by at least two credible
the city of Amoy, Fookien province, Republic of China, leaving real and personal properties witnesses. When a lost will is proved, the provisions thereof must be distinctly
in the Philippines and a house in Amoy, Fookien province, China, and children by the first stated and certified by the judge, under the seal of the court, and the certificate
marriage had with the late Manuela T. Cruz namely, Apolonio, Concepcion, Angel, Manuel, must be filed and recorded as other wills are filed and recorded.
Federico, Ana, Aurora, Emiliano, and Jose, Jr. and a child named Silvino by the second
marriage had with Maria Natividad Lim Billian who survived him. Intestate proceedings were
instituted in the Court of First Instance of Bulacan (special proceedings No. 4892) and after
The witnesses who testified to the provisions of the lost will are Go Toh, an attesting
witness, Anastacio Teodoro and Ana Suntay. Manuel Lopez, who was an attesting witness
to the lost will, was dead at the time of the hearing of this alternative petition. In his
deposition Go Toh testifies that he was one of the witnesses to the lost will consisting of
twenty-three sheets signed by Jose B. Suntay at the bottom of the will and each and every
page thereof in the presence of Alberto Barretto, Manuel Lopez and himself and underneath
the testator's signature the attesting witnesses signed and each of them signed the
attestation clause and each and every page of the will in the presence of the testator and of
the other witnesses (answers to the 31st, 41st, 42nd, 49th, 50th, 55th and 63rd
interrogatories, Exhibit D-1), but did not take part in the drafting thereof (answer to the 11th
interrogatory, Id.); that he knew the contents of the will written in Spanish although he knew
very little of that language (answers to the 22nd and 23rd interrogatories and to X-2 cross-
interrogatory, Id.) and all he knows about the contends of the lost will was revealed to him
by Jose B. Suntay at the time it was executed (answers to the 25th interrogatory and to X-4
and X-8 cross-interrogatories, Id.); that Jose B. Suntay told him that the contents thereof are
the same as those of the draft (Exhibit B) (answers to the 33rd interrogatory and to X-8
cross-interrogatory, Id.) which he saw in the office of Alberto Barretto in November 1929
when the will was signed (answers to the 69th, 72nd, and 74th interrogatories, Id); that
Alberto Barretto handed the draft and said to Jose B. Suntay: "You had better see if you
want any correction" (answers to the 81st, 82nd and 83rd interrogatories, Id.); that "after
checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and
executed" (answers to the 91st interrogatory, and to X-18 cross-interrogatory, Id.); that Mrs.
Suntay had the draft of the will (Exhibit B) translated into Chinese and he read the
translation (answers to the 67th interrogatory, Id.); that he did not read the will and did not
compare it (check it up) with the draft (Exhibit B) (answers to X-6 and X-20 cross-
interrogatories, Id.).
Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio
Suntay she learned that her father left a will "because of the arrival of my brother Manuel
Suntay, who was bringing along with him certain document and he told us or he was telling
us that it was the will of our father Jose B. Suntay which was taken from Go Toh. ..." (p. 524,
t. s. n., hearing of 24 February 1948); that she saw her brother Apolonio Suntay read the
document in her presence and of Manuel and learned of the adjudication made in the will by
her father of his estate, to wit: one-third to his children, one-third to Silvino and his mother
and the other third to Silvino, Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t.
s. n. Id.); that "after Apolonio read that portion, then he turned over the document to Manuel,
and he went away," (p. 528, t. s. n., Id.). On cross-examination, she testifies that she read
the part of the will on adjudication to know what was the share of each heir (pp. 530, 544, t.
s. n., Id.) and on redirect she testifies that she saw the signature of her father, Go Toh,
Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.).
Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19
January 1948), before the last postponement of the hearing granted by the Court, Go Toh
arrived at his law office in the De los Reyes Building and left an envelope wrapped in red
handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); that he checked up the
signatures on the envelope Exhibit A with those on the will placed in the envelope (p. 33, t.
s. n., Id.); that the will was exactly the same as the draft Exhibit B (pp. 32, 47, 50, t. s.
n., Id.).
If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro And
returned by the latter to the former because they could not agree on the amount of fees, the
former coming to the latter's office straight from the boat (p. 315, t. s. n., hearing of 19
January 1948) that brought him to the Philippines from Amoy, and that delivery took place in
November 1934 (p. 273, t. s. n., Id.), then the testimony of Ana Suntay that she saw and
heard her brother Apolonio Suntay read the will sometime in September 1934 (p. 524, t. s.
n., hearing of 24 February 1948), must not be true.
Although Ana Suntay would be a good witness because she was testifying against her own
interest, still the fact remains that she did not read the whole will but only the adjudication
(pp. 526-8, 530-1, 542, t. s. n., Id.) and saw only the signature, of her father and of the
witnesses Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.). But her
testimony on cross-examination that she read the part of the will on adjudication is
inconsistent with her testimony in chief that after Apolonio had read that part of the will he
turned over or handed the document to Manuel who went away (p. 528, t. s. n., Id.).
If it is true that Go Toh saw the draft Exhibit B in the office of Alberto Barretto in November
1929 when the will was signed, then the part of his testimony that Alberto Barretto handed
the draft to Jose B. Suntay to whom he said: "You had better see if you want any correction"
and that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original
signed and executed" cannot be true, for it was not the time for correcting the draft of the
will, because it must have been corrected before and all corrections and additions written in
lead pencil must have been inserted and copied in the final draft of the will which was
signed on that occasion. The bringing in for the draft (Exhibit B) on that occasion is just to fit
it within the framework of the appellant's theory. At any rate, all of Go Toh's testimony by
deposition on the provisions of the alleged lost will is hearsay, because he came to know or
he learned to them from information given him by Jose B. Suntay and from reading the
translation of the draft (Exhibit B) into Chinese.
Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the
supposed will or the alleged will of his father and that the share of the surviving widow,
according to the will, is two-thirds of the estate (p. 229, t. s. n., hearing of 24 October 1947).
But this witness testified to oppose the appointment of a co-administrator of the estate, for
the reason that he had acquired the interest of the surviving widow not only in the estate of
her deceased husband but also in the conjugal property (pp. 148, 205, 228, 229, 231, t. s.
n., Id.) Whether he read the original will or just the copy thereof (Exhibit B) is not clear. For
him the important point was that he had acquired all the share, participation and interest of
the surviving widow and of the only child by the second marriage in the estate of his
deceased father. Be that as it may, his testimony that under the will the surviving widow
would take two-thirds of the estate of the late Jose B. Suntay is at variance with Exhibit B
and the testimony of Anastacio Teodoro. According to the latter, the third for strict legitime is
for the ten children; the third for betterment is for Silvino, Apolonio, Concepcion and Jose
Jr.; and the third for free disposal is for the surviving widow and her child Silvino.
Hence, granting that there was a will duly executed by Jose B. Suntay placed in the
envelope (Exhibit A) and that it was in existence at the time of, and not revoked before, his
death, still the testimony of Anastacio Teodoro alone falls short of the legal requirement that
the provisions of the lost will must be "clearly and distinctly proved by at least two credible
witnesses." Credible witnesses mean competent witnesses and those who testify to facts
from or upon hearsay are neither competent nor credible witnesses.
On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or
drew up two mills for Jose B. Suntay at the latter's request, the rough draft of the first will
was in his own handwriting, given to Manuel Lopez for the final draft or typing and returned
to him; that after checking up the final with the rough draft he tore it and returned the final
draft to Manuel Lopez; that this draft was in favor of all the children and the widow (pp. 392-
4, 449, t. s. n., hearing of 21 February 1948); that two months later Jose B. Suntay and
Manuel Lopez called on him and the former asked him to draw up another will favoring more
his wife and child Silvino; that he had the rough draft of the second will typed (pp. 395, 449
t. s. n., Id.) and gave it to Manuel Lopez (p. 396, t. s. n., Id.); that he did not sign as witness
the second will of Jose B. Suntay copied from the typewritten draft [Exhibit B] (p. 420, t. s.
n., Id.); that the handwritten insertions or additions in lead pencil to Exhibit B are not his (pp.
415-7 435-6, 457, t. s. n., Id.); that the final draft of the first will made up of four or five
pages (p. 400, t. s. n., Id.) was signed and executed, two or three months after Suntay and
Lopez had called on him (pp. 397-8, 403, 449, t. s. n., Id.) in his office at the Cebu Portland
Cement in the China Banking Building on Dasmariñas street by Jose B. Suntay, Manuel
Lopez and a Chinaman who had all come from Hagonoy (p. 398, t. s. n., Id.); that on that
occasion they brought an envelope (Exhibit A) where the following words were written:
"Testamento de Jose B. Suntay" (pp. 399, 404, t. s. n., Id.); that after the signing of the will it
was placed inside the envelope (Exhibit A) together with an inventory of the properties of
Jose B. Suntay and the envelope was sealed by the signatures of the testator and the
attesting witnesses (pp. 398, 401, 441, 443, 461, t. s. n., Id.); that he again saw the
envelope (Exhibit A) in his house one Saturday in the later part of August 1934, brought by
Go Toh and it was then in perfect condition (pp. 405-6, 411, 440-2, t. s. n., Id.); that on the
following Monday Go Toh went to his law office bringing along with him the envelope
(Exhibit A) in the same condition; that he told Go Toh that he would charge P25,000 as fee
for probating the will (pp. 406, 440-2, Id.); that Go Toh did not leave the envelope (Exhibit A)
either in his house or in his law office (p. 407, t. s. n., Id.); that Go Toh said he wanted to
keep it and on no occasion did Go Toh leave it to him (pp. 409, 410, t. s. n., Id.).
The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with
the complaint for estafa filed against Manuel Suntay for the alleged snatching of the
envelope (Exhibit A), corroborates the testimony of Alberto Barretto to the effect that only
one will was signed by Jose B. Suntay at his office in which he (Alberto Barretto), Manuel
Lopez and Go Toh took part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh
testified before the same assistant fiscal that he did not leave the will in the hands of
Anastacio Teodoro (p. 26, t. s. n., Exhibit 6). He said, quoting his own words, "Because I
can not give him this envelope even though the contract (on fees) was signed. I have to
bring that document to court or to anywhere else myself." (p. 27, t. s. n., Exhibit 6).
As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on
the point in Rule 78. Section 1 of the rule provides:
Wills proved and allowed in a foreign country, according to the laws of such
country, may be allowed, filed, and recorded by the proper Court of First Instance
in the Philippines.
Section 2 provides:
When a copy of such will and the allowance thereof, duly authenticated, is filed
with a petition for allowance in the Philippines, by the executor or other person
interested, in the court having jurisdiction, such court shall fix a time and place for
the hearing, and cause notice thereof to be given as in case of an original will
presented for allowance.
Section 3 provides:
If it appears at the hearing that the will should be allowed in the Philippines, the
court shall so allow it, and a certificate of its allowance, signed by the Judge, and
attested by the seal of the courts, to which shall be attached a copy of the will,
shall be filed and recorded by the clerk, and the will shall have the same effect as if
originally proved and allowed in such court.
The fact that the municipal district court of Amoy, China, is a probate court must be proved.
The law of China on procedure in the probate or allowance of wills must also be proved.
The legal requirements for the execution of a valid will in China in 1931 should also be
established by competent evidence. There is no proof on these points. The unverified
answers to the questions propounded by counsel for the appellant to the Consul General of
the Republic of China set forth in Exhibits R-1 and R-2, objected to by counsel for the
appellee, are inadmissible, because apart from the fact that the office of Consul General
does not qualify and make the person who holds it an expert on the Chinese law on
procedure in probate matters, if the same be admitted, the adverse party would be deprived
of his right to confront and cross-examine the witness. Consuls are appointed to attend to
trade matters. Moreover, it appears that all the proceedings had in the municipal district
court of Amoy were for the purpose of taking the testimony of two attesting witnesses to the
will and that the order of the municipal district court of Amoy does not purport to probate the
will. In the absence of proof that the municipal district court of Amoy is a probate court and
on the Chinese law of procedure in probate matters, it may be presumed that the
proceedings in the matter of probating or allowing a will in the Chinese courts are the a
deposition or to a perpetuation of testimony, and even if it were so it does not measure
same as those provided for in our laws on the subject. It is a proceedings in rem and for the
validity of such proceedings personal notice or by publication or both to all interested parties
must be made. The interested parties in the case were known to reside in the Philippines.
The evidence shows that no such notice was received by the interested parties residing in
the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of 24 February 1948). The
proceedings had in the municipal district court of Amoy, China, may be likened toe or come
up to the standard of such proceedings in the Philippines for lack of notice to all interested
parties and the proceedings were held at the back of such interested parties.
The order of the municipal district court of Amoy, China, which reads as follows:
ORDER:
SEE BELOW
 The above minutes were satisfactorily confirmed by the interrogated parties, who
declare that there are no errors, after said minutes were loudly read and
announced actually in the court.
Done and subscribed on the Nineteenth day of the English month of the 35th year
of the Republic of China in the Civil Section of the Municipal District Court of Amoy,
China.
HUANG KUANG CHENG
Clerk of Court
CHIANG TENG HWA
Judge
(Exhibit N-13, p. 89 Folder of Exhibits.).
does not purport to probate or allow the will which was the subject of the proceedings. In
view thereof, the will and the alleged probate thereof cannot be said to have been done in
accordance with the accepted basic and fundamental concepts and principles followed in
the probate and allowance of wills. Consequently, the authenticated transcript of
proceedings held in the municipal district court of Amoy, China, cannot be deemed and
accepted as proceedings leading to the probate or allowance of a will and, therefore, the will
referred to therein cannot be allowed, filed and recorded by a competent court of this
country.
The decree appealed from is affirmed, without pronouncement as to costs.
Pablo, Bengzon, A. Reyes, Labrador and Concepcion, JJ., concur.
Separate Opinions
PARAS, C.J., dissenting:
As a preliminary statement we may well refer to the case of Maria Natividad Lim Billian,
petitioner and appellant, vs.Apolonio Suntay, Angel Suntay, Manuel Suntay, and Jose
Suntay, oppositors and appellees, 63 Phil., 793-797, in which the following decision was
rendered by this Court on November 25, 1936, holding that the will executed by Jose B.
Suntay who died in the City of Amoy, China, on May 14, 1934, was lost under the
circumstances pointed out therein, and ordering the return of the case to the Court of First
Instance of Bulacan for further proceedings:
On May 14, 1934, Jose B. Suntay died in the City of Amoy, China. He married
twice, the first time to Manuela T. Cruz with whom he had several children now
residing in the Philippines, and the second time to Maria Natividad Lim Billian with
whom he had a son.
On the same date, May 14, 1934, Apolonio Suntay, eldest son of the deceased by
his first marriage, filed the latter's intestate in the Court of First Instance of Manila
(civil case No. 4892).
On October 15, 1934, and in the same court, Maria Natividad Lim Billian also
instituted the present proceedings for the probate of a will allegedly left by the
deceased.
According to the petitioner, before the deceased died in China he left with her a
sealed envelope (Exhibit A) containing his will and, also another document (Exhibit
B of the petitioner) said to be a true copy of the original contained in the envelope.
The will in the envelope was executed in the Philippines, with Messrs. Go Toh,
Alberto Barretto and Manuel Lopez as attesting witnesses. On August 25, 1934,
Go Toh, as attorney-in-fact of the petitioner, arrived in the Philippines with the will
in the envelope and its copy Exhibit B. While Go Toh was showing this envelope to
Apolonio Suntay and Angel Suntay, children by first marriage of the deceased,
they snatched and opened it and, after getting its contents and throwing away the
envelope, they fled.
Upon this allegation, the petitioner asks in this case that the brothers Apolonio,
Angel, Manuel and Jose Suntay, children by the first marriage of the deceased,
who allegedly have the document contained in the envelope which is the will of the
deceased, be ordered to present it in court, that a day be set for the reception of
evidence on the will, and that the petitioner be appointed executrix pursuant to the
designation made by the deceased in the will.
In answer to the court's order to present the alleged will, the brothers Apolonio,
Angel, Manuel and Jose Suntay stated that they did not have the said will and
denied having snatched it from Go Toh.
In view of the allegations of the petition and the answer of the brothers Apolonio,
Angel, Manuel and Jose Suntay, the questions raised herein are: The loss of the
alleged will of the deceased, whether Exhibit B accompanying the petition is an
authentic copy thereof, and whether it has been executed with all the essential and
necessary formalities required by law for its probate.
At the trial of the case on March 26, 1934, the petitioner put two witnesses upon
the stand, Go Toh and Tan Boon Chong, who corroborated the allegation that the
brothers Apolonio and Angel appropriated the envelope in the circumstances
above-mentioned. The oppositors have not adduced any evidence counter to the
testimony of these two witnesses. The court, while making no express finding on
this fact, took it for granted in its decision; but it dismissed the petition believing
that the evidence is insufficient to establish that the envelope seized from Go Toh
contained the will of the deceased, and that the said will was executed with all the
essential and necessary formalities required by law for its probate.
In our opinion, the evidence is sufficient to establish the loss of the document
contained in the envelope. Oppositors' answer admits that, according to Barretto,
 he prepared a will of the deceased to which he later become a witness together
with Go Toh and Manuel Lopez, and that this will was placed in an envelope which
was signed by the deceased and by the instrumental witnesses. In court there was
presented and attached to the case an open and empty envelope signed by Jose
B. Suntay, Alberto Barretto, Go Toh and Manuel Lopez. It is thus undeniable that
this envelope Exhibit A is the same one that contained the will executed by the
deceased-drafted by Barretto and with the latter, Go Toh and Manuel Lopez as
attesting witnesses. These tokens sufficiently point to the loss of the will of the
deceased, a circumstance justifying the presentation of secondary evidence of its
contents and of whether it was executed with all the essential and necessary legal
formalities.
The trial of this case was limited to the proof of loss of the will, and from what has
taken place we deduce that it was not petitioner's intention to raise, upon the
evidence adduced by her, the other points involved herein, namely, as we have
heretofore indicated, whether Exhibit B is a true copy of the will and whether the
latter was executed with all the formalities required by law for its probate. The
testimony of Alberto Barretto bears importantly in this connection.
Wherefore, the loss of the will executed by the deceased having been sufficiently
established, it is ordered that this case be remanded to the court of origin for
further proceedings in obedience to this decision, without any pronouncement as to
the costs. So ordered
On June 18, 1947, Silvino Suntay, the herein petitioner, filed a petition in the Court of First
Instance of Bulacan praying "that an order be issued (a) either directing the continuation of
the proceedings in the case remanded by the Supreme Court by virtue of its decision in G.
R. No. 44276 and fixing a date for the reception of evidence of the contents of the will
declared lost, or the allowance, filing and recording of the will of the deceased which had
been duly probated in China, upon the presentation of the certificates and authentications
required by Section 41, Rule 123 (Yu Chengco vs. Tiaoqui supra), or both proceedings
concurrently and simultaneously; (b) that letters of administration be issued to herein
petitioner as co-administrator of the estate of the deceased together with Federico Suntay;
and (c) that such other necessary and proper orders be issued which this Honorable Court
deems appropriate in the premises." While this petition was opposed by Federico C. Suntay,
son of the deceased Jose B. Suntay with his first wife, Manuela T. Cruz, the other children
of the first marriage, namely, Ana Suntay, Aurora Suntay, Concepcion Suntay, Lourdes
Guevara Vda. de Suntay, Manuel Suntay and Emiliano Suntay, filed the following answer
stating that they had no opposition thereto; "Come now the heirs Concepcion Suntay, Ana
Suntay, Aurora Suntay, Lourdes Guevara Vda. de Suntay, Manuel Suntay, and Emiliano
Suntay, through their undersigned attorney, and, in answer to the alternative petition filed in
these proceedings by Silvino Suntay, through counsel, dated June 18, 1947, to this
Honorable Court respectfully state that, since said alternative petition seeks only to put into
effect the testamentary disposition and wishes of their late father, they have no opposition
thereto."
After hearing, the Court of First Instance of Bulacan rendered on April 19, 1948, the
following decision:
This action is for the legalization of the alleged will of Jose B. Suntay, deceased.
In order to have a comprehensive understanding of this case, it is necessary to
state the background on which the alternative petition of the herein petitioner
Silvino Suntay has been based.
The decision of the Supreme Court (Exhibit O), in re will of the deceased Jose B.
Suntay, 63 Phil., 793-797, is hereunder produced:
(As quoted above)
The above quoted decision of the Supreme Court was promulgated on November
25, 1936 (Exhibit O).
The Clerk of the Court of Court of First Instance of Bulacan notified the parties of
the decision on December 15, 1936; and the case was set for hearing on February
12, 1937, but it was transferred to March 29, 1937 (Exhibit O), on motion of the
then petitioner Maria Natividad Lim Billian (Exhibit F). Again, it was postponed until
"further setting" in the order of court dated March 18, 1937, upon motion of the
petitioner (Exhibit H).
In the meantime, the deposition of Go Toh was being sought (Exhibit H).
The hearing of the case was again set for February 7, 1936, by order of the court
dated January 5, 1938, upon motion of Emiliano Suntay and Jose Suntay, Jr. On
the same day of the hearing which had been set, the petitioner, then, Maria
Natividad Lim Billian, sent a telegram from Amoy, China, addressed to the Court of
First Instance of Bulacan moving for the postponement of the hearing on the
ground that Atty. Eriberto de Silva who was representing her died (Exhibit K). The
court, instead of granting the telegraphic motion for postponement, dismissed the
case in the order dated February 7, 1938 (Exhibit L).
On July 3, 1947, the petitioner Silvino Suntay filed a motion for the consolidation of
the intestate Estate of the deceased Jose B. Suntay, Special Proceeding No. 4892
and the Testate Estate of Jose B. Suntay, Special Proceeding No. 4952, which
latter case is the subject of the said alternative petition. The motion for the merger
and consolidation of the two cases was granted on July 3, 1947.
That oppositor, Federico C. Suntay, in the Testate Proceeding filed a motion to
dismiss the alternative petition on November 14, 1947, which was denied by the
court in its resolution of November 22, 1947. The said oppositor not being satisfied
with the ruling of this court denying the motion to dismiss, filed before the Supreme
Court a petition for a writ of certiorari with preliminary injunction, which was
dismissed for lack of merit on January 27, 1948.
In obedience to the decision of the Supreme Court (Exhibit O) and upon the
alternative petition of Silvino Suntay, and, further, upon the dismissal of the petition
for a writ of certiorari with preliminary injunction, the court was constrained to
proceed with the hearing of the probate of the lost will, the draft of which is Exhibit
B, or the admission and recording of the will which had been probated in Amoy,
China.
The evidence for the petitioner, Silvino Suntay, shows that Jose B. Suntay married
twice; first to Manuela T. Cruz who died on June 15, 1920 and had begotten with
her Apolonio, now deceased, Concepcion, Angel, Manuel, Federico, Ana, Aurora,
Emiliano and Jose, Jr., all surnamed Suntay, and second, to Maria Natividad Lim
Billian with whom he had as the only child Silvino Suntay, the petitioner herein.
Some time in November 1929, Jose B. Suntay executed his last will and testament
in the office of Atty. Alberto Barretto in Manila, which was witnessed by Alberto
Barretto, Manuel Lopez and Go Toh. The will was prepared by said Alberto
Barretto upon the instance of Jose B. Suntay, and it was written in the Spanish
language which was understood and spoken by said testator. After the due
execution of the will, that is signing every page and the attestation clause by the
testator and the witnesses in the presence of each other, the will was placed inside
the envelope (Exhibit A), sealed and on the said envelope the testator and the
three subscribing witnesses also signed, after which it was delivered to Jose B.
Suntay.
A year or so after the execution of the will, Jose B. Suntay together with his second
wife Maria Natividad Lim Billian and Silvino Suntay who was then of tender age
went to reside in Amoy, Fookien, China, where he died on May 14, 1934. The will
was entrusted to the widow, Maria Natividad Lim Billian.
Upon the death of Jose B. Suntay on May 14, 1934, Apolonio Suntay, the oldest
son now deceased, instituted the Intestate Proceedings No. 4892, upon the
presumption that no will existed. Maria Natividad Lim Billian who remained in
Amoy, China, had with her the will and she engaged the services of the law firm of
Barretto and Teodoro for the probate of the will. Upon the request of the said
attorneys the will was brought to the Philippines by Go Toh who was one of the
attesting witnesses, and it was taken to the law office of Barretto and Teodoro. The
law firm of Barretto and Teodoro was composed of Atty. Alberto Barretto and
Judge Anastacio Teodoro. The probate of the will was entrusted to the junior
partner Judge Anastacio Teodoro; and, upon the presentation of the sealed
envelope to him, he opened it and examined the said will preparatory to the filing of
the petition for probate. There was a disagreement as to the fees to be paid by
Maria Natividad Lim Billian, and as she (through Go Toh) could not agree to pay,
P20,000 as fees, the will was returned to Go Toh by Judge Anastacio Teodoro
after the latter had kept it in his safe, in his office, for three days.
Subsequently, the will inside the envelope was snatched from Go Toh by Manuel
Suntay and Jose, Jr., which fact has been established in the decision of the
Supreme Court at the beginning of this decision. Go Toh could recover the
envelope (Exhibit A) and the piece of cloth with which the envelope was wrapped
(Exhibit C).
The Testate Proceeding was filed nevertheless and in lien of the lost will a draft of
the will (Exhibit B) was presented as secondary evidence for probate. It was
disallowed by this court through Judge Buenaventura Ocampo, but on appeal the
Supreme Court remanded the case to this court for further proceeding (Exhibit C).
In the meantime, a Chinese will which was executed in Amoy Fookien, China, on
January 4, 1931, by Jose B. Suntay, written in Chinese characters (Exhibit P) was
discovered in Amoy, China, among the papers left by Jose B. Suntay, and said will
had been allowed to probate in the Amoy District Court, China, which is being also
presented by Silvino Suntay for allowance and recording in this court.
The said petition is opposed by Federico C. Suntay on the main ground that Maria
Natividad Lim Billian and Silvino Suntay have no more interest in the properties left
by Jose B. Suntay, because they have already sold their respective shares,
interests and participations. But such a ground of opposition is not of moment in
the instant case, because the proposition involved herein in the legalization of the
lost will or the allowance and recording of the will which had been probated in
Amoy, China.
It is now incumbent upon this court to delve into the evidence whether or not Jose
B. Suntay, deceased, left a will (the draft of which is Exhibit B) and another will
which was executed and another will which was executed and probated in Amoy,
China.
There is no longer any doubt that Jose B. Suntay while he was still residing in the
Philippines, had executed a will; such is the conclusion of the Supreme Court in its
decision (Exhibit O). That the will was snatched and it has never been produced in
court by those who snatched it, and consequently considered lost, is also an
established fact.
The contention of the oppositor, Federico C. Suntay, is that the will that was
executed by Jose B. Suntay in the Philippines contained provisions which provided
for equal distribution of the properties among the heirs; hence, the draft (Exhibit B)
cannot be considered as secondary evidence, because it does not provide for
equal distribution, but if favors Maria Natividad Lim Billian and Silvino Suntay. He
relies on the testimony of Atty. Alberto Barretto who declared that the first will
which he drafted and reduced into a plain copy was the will that was executed by
Jose B. Suntay and placed inside the envelope (Exhibit A).
Granting that the first will which Atty. Alberto Barretto had drafted became the will
of Jose B. Suntay and it was snatched by, and, therefore, it had fallen into the
hands of, Manuel Suntay and the brothers of the first marriage, it stands to reason
that said Manuel Suntay and brothers would have been primarily interested in the
production of said will in court, for obvious reasons, namely, that they would have
been favored. But it was suppressed and "evidence willfully suppressed would be
adverse if produced" (Section 69 (e), Rule 123 of the Rules of Court). The
contention, therefore, that the first will which was drafted by Atty. Barretto was the
one placed inside the envelope (Exhibit A) is untenable.
It might be said in this connection that the draft of the will (Exhibit B) has been
admitted by Atty. Alberto Barretto as identical in substance and form to the second
draft which he prepared in typewriting; it differs only, according to him, in style. He
denied that the insertions in long hand in the said draft are in his own handwriting;
however, Judge Anastacio Teodoro averred that the said insertions are the
handwriting of Atty. Alberto Barretto. But when Atty. Alberto Barretto was asked to
show any manuscript of his for purposes of comparison, he declined to do so
alleging that he did not have any document in his possession showing his
handwriting notwithstanding the fact that he was testifying in his own house at 188
Sta. Mesa Boulevard, Manila. He further testified that the first will be drafted
contained four or five pages, but the second draft contained twenty-three pages;
that he declared in one breath that he did not read the will any more when it was
signed by the testator and the attesting witnesses because it would take up much
time, and in the same breath he declared that he checked it before it was signed;
and that he destroyed the draft of the first will which was in his own handwriting,
but he delivered the draft of the second will which he prepared to Jose B. Suntay in
the presence of Manuel Lopez, now deceased.
Whether or not the final plain copy of the draft of the will (Exhibit B) was executed
by the testator, Jose B. Suntay, and attested by the subscribing witnesses, Atty.
Alberto Barretto, Manuel Lopez and Go Toh, is the pivotal point in this instant case.
Judge Anastacio Teodoro testified that he opened the sealed envelope when it
was given to him by Go Toh preparatory to the presentation of the petition for the
probate of the said will. As the lawyer entrusted with that task, he had to examine
the will and have it copied to be reproduced or appended to the petition. He could
not do otherwise if he is worth salt as a good lawyer; he could not perform the stunt
of "blind flying" in the judicial firmament. Every step must be taken with certainty
and precision under any circumstances. He could not have talked about the
attorney's fees with Go Toh, unless he has not examined the will beforehand. And,
declaring that it was the exact draft of the will that was inside the envelope (Exhibit
A), the testimony of Atty. Alberto Barretto to the contrary notwithstanding.
The testimony of Judge Anastacio Teodoro is corroborated by Go Toh, one of the
attesting witnesses, in his deposition (Exhibit D-1).
Ana Suntay, one of the heirs and who would be affected adversely by the
legalization of the will in question, also testified on rebuttal that she saw the original
will in the possession of Manuel Suntay, immediately after the snatching. She read
it and she particularly remembers the manner in which the properties were to be
distributed. Exhibit B was shown to her on the witness stand and she declared that
the provision regarding the distribution of the properties in said Exhibit B is the
same as that contained in the original will. Said testimony of Ana Suntay, therefore,
belies the testimony of Atty. Alberto Barretto.
With respect to the proof of lost or destroyed will, Section 6 of Rule 77 provides as
follows:
"No will shall be proved as a lost or destroyed will unless the execution and validity
of the same be established, and the will is proved to have been in existence at the
time of the death of the testator, or it is shown to have been fraudulently or
accidentally destroyed in the lifetime of the testator without his knowledge, nor
unless its provisions are clearly and distinctly proved by at least two credible
witnesses. When a lost will is proved, the provisions thereof must be distinctly
stated and certified by the judge, under the seal of the court, and the certificate
must be filed and recorded as other wills are filed and recorded."
Section 8 of the same Rule provides as follows:
"If it appears at the time fixed for the hearing that the subscribing witnesses are
dead or insane, or that none of them resides in the Philippines the court may admit
the testimony of other witnesses to prove the sanity of the testator, and the due
execution of the will; and as evidence of the due execution of the will, it may admit
proof of the handwriting of the testator and of the subscribing witnesses, or any of
them."
Manuel Lopez as one of the subscribing witnesses is dead. Atty. Alberto Barretto
and Go Toh are still living. The former testified during the hearing, while Go Toh's
deposition was introduced in evidence which was admitted. In the absence of the
testimony of Manuel Lopez, deceased, the testimony of Judge Anastacio Teodoro
and Ana Suntay was received.
It is an established fact that the will, draft of which is Exhibit B, was lost or
destroyed; that it was executed and valid and that it existed at the time of the death
of Jose B. Suntay. These circumstances also apply to the will (Exhibit P) which
was executed in Amoy, China.
The contents of the Chinese will is substantially the same as the draft (Exhibit B).
Granting that the will executed in the Philippines is non-existent as contended by
the oppositor, although the findings of this court is otherwise, the will executed and
probated in China should be allowed and recorded in this court. All the formalities
of the law in China had been followed in its execution, on account of which it was
duly probated in the Amoy District Court. There is no cogent reason, therefore, why
it should not be admitted and recorded in this jurisdiction.
The said will (Exhibit P) in Chinese characters is presented as an alternate in case
the will executed in the Philippines would not be allowed to probate, or as a
corroborative evidence that the will, the draft of which is Exhibit B, has been duly
executed in the Philippines by Jose B. Suntay.
Rule 78 of the Rules of Court covers the allowance of will proved outside of the
Philippines and administration of estate thereunder.
Section 1 of said rule provides:
 "Wills proved and allowed in the United States, or any state or territory thereof, or
in foreign country, according to the laws of such state, territory, or country, may be
allowed, filed, and recorded by the proper Court of First Instance in the
Philippines."
Section 2 of the same rule provides:
"When a copy of such will and the allowance thereof, duly authenticated, is filed
with a petition for allowance in the Philippines, by the executor or other person
interested, in the court having jurisdiction, such court shall fix a time and place for
the hearing, and cause notice thereof to be given as in case of an original will
presented for allowance."
This court has delved deep into the evidence adduced during the hearing with that
penetrating scrutiny in order to discovery the real facts; it had used unsparingly the
judicial scapel; and it has winnowed the evidenced to separate the grain from the
chaff. All the facts lead to the inevitable conclusion that Jose B. Suntay, in his
sound and disposing mind and not acting under duress or undue influence,
executed the will which is lost, the draft of which is Exhibit B, with all the necessary
formalities prescribed by law. He, likewise, executed the second will (Exhibit P) in
Amoy, China, which has been duly probated in Amoy District Court,-a
corroborative evidence that the testator really executed the will. Copies of the said
wills duly certified and under the seal of the court are appended hereto, marked
Exhibits B and P, and they form part of this decision.
In view of the foregoing considerations, the court is of the opinion and so declares
that the draft of the will (Exhibit B) is, to all legal intents and purposes, and
testament of the deceased Jose B. Suntay. With costs against the oppositor,
Federico C. Suntay.
Oppositor Federico C. Suntay filed on May 20, 1948, a motion for new trial and to set aside
the decision rendered on April 19, 1948, to which the petitioner filed an opposition, followed
by a reply filed by the oppositor and an answer on the part of the petitioner. Without
reopening the case and receiving any new or additional evidence, the Court of First
Instance of Bulacan, on September 29, 1948, promulgated the following resolution setting
aside his first decision and disallowing the wills sought to be probated by the petitioner in his
alternative petition filed on June 18, 1947:
This is a motion for new trial and to set aside the decision legalizing the will of Jose
B. Suntay and allowing and recording another will executed by him in Amoy,
China.
By virtue of this motion, this court is constrained to go over the evidence and the
law applicable thereto with the view of ascertaining whether or not the motion is
well founded. Both parties have presented extensive memoranda in support of
their respective contentions.
This court has gone over the evidence conscientiously, and it reiterates its findings
of the same facts in this resolution, whether or not the facts established by the
petitioner, Silvino Suntay, warrant the legalization of the lost will and the allowance
and recording of the will that was executed in Amoy, China, is therefore, the
subject of this instant motion.
A. As to the legalization of the Lost Will. — There is no question in the mind of this
court that the original will which Jose B. Suntay, deceased executed in the
Philippines in the year 1929 was lost (Exhibit O, Decision of the Supreme Court).
The evidence adduced by the petitioner during the hearing has established through
the testimony of Judge Anastacio Teodoro and that of Go Toh (an attesting
witness) that the will was executed by Jose B. Suntay, deceased, with all the
formalities required by law. For the purpose of legalizing an original and existing
will, the evidence on record is sufficient as to the execution and attesting in the
manner required by law.
Section 8 of Rule 77 provides as follows:
"SEC. 8. Proof when witnesses dead or insane or do not reside in the Philippines.
— If it appears at the time fixed for the hearing that the subscribing witnesses are
dead or insane, or that none of them resides in the Philippines, the court may
admit the testimony of other witnesses to prove the sanity of the testator, and the
due execution of the will; and as evidence of the execution of the will, may admit
proof of the handwriting of the testator and of the subscribing witnesses, or any of
them."
Section 11 of said rule also provides as follows:
"SEC. 11. Subscribing witnesses produced or accounted for where contest. — If
the will is contested, all the subscribing witnesses present in the Philippines and
not insane, must be produced and examined, and the death, absence, or insanity
of any of them must be satisfactorily shown to the court. If all or some of the
subscribing witnesses are present in the Philippines, but outside the province
where the will has been filed, their deposition must be taken. If all or some of the
subscribing witnesses produced and examined testify against the due execution of
the will, or do not remember having attested to it, or are otherwise of doubtful
credibility, the will may be allowed if the court is satisfied from the testimony of
other witnesses and from all the evidence presented that the will was executed and
attested in the manner required by law."
The three attesting witnesses were Manuel Lopez, deceased Alberto Barretto and
Go Toh. The last two witnesses are still living; the former testified against and the
latter in favor. In other words, the attesting witness, Go Toh, only, testified in his
deposition in favor of the due execution of the will. Hence, the petitioner presented
another witness, Judge Anastacio Teodoro, to establish and prove the due
execution of the said will. Ana Suntay was also presented as a witness in rebuttal
evidence. The testimony of Go Toh in his deposition as an attesting witness,
coupled with the testimony of Judge Anastacio Teodoro who was able to examine
the original will that was executed by Jose B. Suntay, deceased, when it was given
to him by Go Toh for the purpose of filing the petition in court for its legalization,
and could recognize the signatures of the testator as well as of the three attesting
witnesses on the said original will is sufficient to convince the court that the original
will was executed by the deceased Jose B. Suntay with all the formalities required
by law. The original will, therefore, if it was presented in court to probate would be
allowed to all legal intents and purposes. But it was not the original will that was
presented, because it was lost, but an alleged draft (Exhibit B) of the said original
will which does not bear the signature of the testator and any of the attesting
witness. The original will was duly executed with all the formalities required by law,
but it was unfortunately lost; and the curtain falls for the next setting.
The Court is now confronted with the legalization of the lost will — whether or not
the draft (Exhibit B) should be admitted as secondary evidence in lieu of the lost
will and allowed to probate.
Section 6. Rule 77 provides as follows:
"SEC. 6. Proof of lost or destroyed will — Certificate thereupon. — No will shall be
proved as a lost will or destroyed will unless the execution and validity of the same
be established, and the will is proved to have been in existence at the time of the
death of the testator, or is shown to have been fraudulently or accidentally
destroyed in the lifetime of the testator without his knowledge, nor unless its
provisions are clearly and distinctly proved by at least two credible witnesses.
When a lost will is proved, the provisions thereof must be distinctly stated and
certified by the Judge, under the seal of the court and the certificate must be filed
and recorded as other wills are filed and recorded." (Emphasis Court's)
From the above quoted provision of the law, it is clear that the petitioner should not
only establish the execution and validity of the will, its existence at the time of the
death of the testator or its fraudulent and accidental destruction in the lifetime of
the testator without his knowledge, but also must prove its provisions clearly and
distinctly by at least two credible witnesses. The exact language of the clause in
the above quoted provision of the law is "nor unless its provisions are clearly and
distinctly proved by at least two credible witnesses." The legalization of a lost will is
not so easy, therefore, as that of an original will. The question, therefore, is boiled
down to, and projected on the screen, in a very sharp focus; namely, the execution
and validity must be established and the provisions must be clearly and distinctly
proved by at least credible witnesses.
Granting that the execution and validity of the lost will have been established
through the testimony of Judge Anastacio Teodoro and Go Toh, and perhaps
superficially by the rebuttal witness, Ana Suntay, does it follow that the provisions
of the lost will have been clearly and distinctly proved by at least two credible
witnesses? A careful review of the evidence has revealed that at most the only
credible witness who testified as to the provisions of the will was Judge Anastacio
Teodoro, and yet he testified on the provisions of the lost will with the draft (Exhibit
B) in his hands while testifying. It may be granted, however, that with or without the
draft of the will (Exhibit B) in his hands, he could have testified clearly and distinctly
on the provisions of the said lost will, because he had kept the will in his safe, in
his office, for three days, after opening it, and he is well versed in Spanish
language in which the will as written. But did the attesting witness Go Toh, testify in
his deposition and prove clearly and distinctly the provisions of the lost will? He did
not, and he could not have done so even if he tried because the original will was
not read to him nor by him before or at the signing of the same. It was written in
Spanish and he did not and does not understand the Spanish language. Neither
was there any occasion for him to have the contents of the said will, after its
execution and sealing inside the envelope (Exhibit A), read to him because it was
opened only when Judge Teodoro had examined it and then subsequently
snatched from Go Toh. Ana Suntay on rebuttal did not, likewise, prove clearly and
distinctly the provisions of the said lost will because she has not had enough
schooling and she does possess adequate knowledge of the Spanish language as
shown by the fact that she had to testify in Tagalog on the witness standing.
It is evident, therefore, that although the petitioner has established the execution
and validity of the lost will, yet he had not proved clearly and distinctly the
provisions of the will by at least two credible witnesses.
B. As to the Allowance and Recording of the will Executed in Amoy, China. — Jose
B. Suntay, while he was residing in China during the remaining years of his life,
executed also a will, written in Chinese characters, the translation of which is
marked Exhibit P. It was allowed to probate in the District Court of Amoy, China.
The question is whether or not the said will should be allowed and recorded in this
jurisdiction.
Section 1 of Rule 78 provides as follows:
"SEC. 1. Will proved outside Philippines any be allowed here. — Will proved and
allowed in the United States, or any state or territory thereof, or in a foreign
country, according to the laws of such state, territory, or country, may be allowed,
filed, and recorded by the proper court of First Instance in the Philippines."
Section 2 of the same Rule also provides:
"SEC. 2. Notice of hearing for allowance. — When a copy of such will and the
allowance thereof, duly authenticated, is filed with a petition for allowance in the
Philippines by the executor or other persons interested, in the Court having
jurisdiction, such court shall fix a time and place for the hearing, and cause notice
thereof to be given as in case of an original will presented for allowance."
Sections 41 and 42 of Rule 123 provides 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 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 within the United States or its territory, the certificate may be made by a
judge of a court of record of the district or political subdivision in which the record is
kept, authenticated by the seal of the court, or may be made by any public officer
having a seal of the office and having official duties in the district or political
subdivision in which the record is kept, authenticated by the seal of his office. 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 United States
stationed in the foreign country in which the record is kept, and authenticated by
the seal of his office."
F. "SEC. 42. What attestation of copy must state. — Whenever a copy of writing is
attested for the purpose of evidence, the attestation must state, in substance, that
the copy is a correct copy of the original, or a specific part thereof, as the case may
be. The attestation must be under the official seal of the attesting officer, if there be
any, or if he be the clerk of a court having a seal, under the seal of such court."
In the case of Yu Changco vs. Tiaoqui, 11 Phil. 598, 599, 600, our Supreme Court
said:
"Section 637 of the Code of Civil Procedure says that will proved and allowed in a
foreign country, according to the laws of such country, may be allowed, filed, and
recorded in the Court of First Instance of the province in which the testator has real
or personal estate on which such will may operate; but section 638 requires that
the proof of the authenticity of a will executed in a foreign country must be
duly "authenticated". Such authentication, considered as a foreign judicial record,
is prescribed by section 304, which requires the attestation of the clerk or of the
legal keeper of the records with the seal of the court annexed, if there be a seal,
together with a certificate of the chief judge or presiding magistrate that the
signature of either of the functionaries attesting the will is genuine, and, finally, the
certification of the authenticity of the signature of such judge or presiding
magistrate, by the ambassador, minister, consul, vice consul or consular agent of
the United States in such foreign country. And, should the will be considered, from
an administrative point of view, as a mere official document 'of a foreign country', it
may be proved, 'by the original, or by a copy certified by the legal keeper thereof,
with a certificate, under the seal of the country or sovereign, that the document is a
valid and subsisting document of such country, and that the copy is duly certified
by the officer having the legal custody of the original. (Sec. 313, par. 8)."
In the case of Fluemer vs. Hix, 54 Phil. 610, 611, 612, and 613, our Supreme Court
said:
"It is the theory of the petitioner that the alleged will was executed in Elkins, West
Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction,
and that the laws of West Virginia govern. To this end, there was submitted a copy
of section 3868 of Acts 1882, c. 84 as found in West Virginia Code, Annotated, by
Hogg, Charles E., Vol. 2, 1914, p. 1690, and as certified to by the Director of the
National Library. But this was far from compliance with the law. The laws of a
foreign jurisdiction do not prove themselves in our courts. The courts of the
Philippine Islands are not authorized to take judicial notice of the laws of the
various States of the American Union. Such laws must be proved as facts. (In re
Estate of Johnson (1918), 39 Phil., 156.) Here the requirements of the law were
not met. There was not showing that the book from which an extract was taken
was printed or published under the authority of the State of West Virginia, as
provided in section 300 of the Code of Civil Procedure. Nor was the extract from
the law attested by the certificate of the officer having charge of the original under
the seal of the State of West Virginia, as provided in section 301 of the Code of
Civil Procedure. No evidence was introduced to show that the extract from the laws
of West Virginia was in force at the time the alleged will was executed.
"It was also necessary for the petitioner to prove that the testator had his domicile
in West Virginia and not in the Philippine Islands. The only evidence introduced to
establish this fact consisted of the recitals in the alleged will and the testimony of
the petitioner.
"While the appeal was pending submission in this court, the attorney for the
appellant presented an unverified petition asking the court to accept as part of the
evidence the documents attached to the petition. One of these documents
discloses that a paper writing purporting to be the last will and testament of Edward
Randolph Hix, deceased, was presented for probate on June 8, 1929, to the clerk
of Randolph County, State of West Virginia, in vacation, and was duly proven by
the oaths of Dana Vansley and Joseph L. Madden, the subscribing witnesses
thereto, and ordered to be recorded and filed. It was shown by another document
that in vacation, on June 8, 1929, the clerk of court of Randolph County, West
Virginia, appointed Claude E. Maxwell as administrator, cum testamento annexo,
of the estate of Edward Randolph Hix, deceased ... However this may be no
attempt has been made to comply with the provisions of sections 637, 638, and
639 of the Code of Civil Procedure, for no hearing on the question of the allowance
of a will said to have been proved and allowed in West Virginia has been
requested. ... ."
Granting that the will of Jose B. Suntay which was executed in Amoy, China, was
validly done in accordance with the law of the Republic of China on the matter, is it
necessary to prove in this jurisdiction the existence of such law in China as a
prerequisite to the allowance and recording of said will? The answer is in the
affirmative as enunciated in Fluemer vs. Hix, supra, and in Yanez de
Barnuevo vs. Fuster, 29 Phil., 606. In the latter case, the Supreme Court said:
"A foreign law may be proved by the certificate of the officer having in charge of the
original, under the seal of the state or country. It may also be proved by an official
copy of the same published under the authority of the particular state and
purporting to contain such law. (Secs. 300 and 301, Act No. 190.), (Syllabus.)
The provisions of section 300 and 301 of the Code of Civil Procedure (Act No. 190)
are as follows:
"SEC. 300. Printed laws of the State or Country. — Books printed or published
under the authority of the United States, or one of the States of the United States,
or a foreign country, and purporting to contain statutes, codes, or other written law
of such State or country or proved to be commonly admitted in the tribunals of
such State or country an evidence of the written law thereof, are admissible in the
Philippine Islands are evidence of such law."
"SEC. 301. Attested copy of foreign laws. — A copy of the written law or other
public writing of any state or country, attested by the certificate of the officer having
charge of the original, under the seal of the state or country, is admissible as
evidence of such law or writing."
The petitioner has presented in evidence the certification of the Chinese Consul
General, Tsutseng T. Shen, of the existence of the law in China (Exhibit B-3),
relative to the execution and probate of the will executed by Jose B. Suntay in
Amoy, China (Exhibit P). Is that evidence admissible, in view of the provisions of
Sections 41 and 42 of the Rules of the Rules of Court. Is the said certification of
the Chinese Consul General in the Philippines a substantial compliance with the
provisions of the above mentioned section 41 and 42 of our Rules of Court?
This court has its doubts as to the admissibility in evidence of the Chinese Consul
General in the Philippines of the existence of the laws of Republic of China relative
to the execution and probate of a will executed in China. Such law may exist in
China, but —
"An official record or an entry therein, when admissible for any purpose, may be
evidence 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
United States stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office." (Sec. 41 of Rule 123.)
The law of the Republic of China is a public or official record and it must be proved
in this jurisdiction through the means prescribed by our Rules of Court. It is,
therefore, obvious that the Chinese Counsel General in the Philippines who
certified as to the existence of such law is not the officer having the legal custody
of the record, nor is he a deputy of such officer. And, 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 United States stationed in the foreign
country in which the record is kept, and authenticated by the seal of his office.
It is clear, therefore, that the above provisions of the Rules of Court (Rule 123, sec.
41) not having been complied with, the doubt of this court has been dissipated, and
it is of the opinion and so holds that the certification of the Chinese Consul
General alone is not admissible as evidence in the jurisdiction.
The evidence of record is not clear as to whether Jose B. Suntay, who was born in
China, but resided in the Philippines for a long time, has become a Filipino citizen
by naturalization, or he remained a citizen of the Republic of China. The record
does not, likewise, show with certainty whether or not he had changed his
permanent domicile from the Philippines to Amoy, China. His change of permanent
domicile could only be inferred. But the question of his permanent domicile pales
into insignificance in view of the overtowering fact that the law of China pertinent to
the allowance and recording of the said will in this jurisdiction has been
satisfactorily established by the petitioner.
Both the petitioner and the oppositor have extensively urged in their respective
memorandum and in the oral argument in behalf of the oppositor the question of
estoppel. The consideration of the points raised by them would open the door to
the appreciation of the intrinsic validity of the provisions of the will which is not of
moment at the present stage of the proceeding. While the probate of a will is
conclusive as to the compliance with all formal requisites necessary to the lawful
execution of the will, such probate does not affect the intrinsic validity of the
provisions of the will. With respect to the latter the will in governed by the
substantive law relative to descent and distribution. (In re Johnson, 39 Phil., 157).
IN VIEW OF THE FOREGOING, and upon reconsideration, the previous decision
rendered in this case allowing the will (Exhibit B) and allowing and recording the
foreign will (Exhibit P) is set aside; and this court is of the opinion and so holds that
the said two wills should be, as they are hereby disallowed. Without special
pronouncement as to costs.
It is very significant that in the foregoing resolution, the Court of First Instance of Bulacan
"reiterates its finding of the same facts in this resolution," and merely proceeds to pose the
sole question "whether or not the facts established by the petitioner, Silvino Suntay, warrant
the legalization of the lost will and allowance and recording of the will that was executed in
Amoy, China." The somersault executed by the trial court is premised on the ground that
"although the petitioner has established the execution and validity of the lost will, yet he has
not proved clearly and distinctly the provisions of the will by the least two credible
witnesses"; and that, assuming that the will of Jose B. Suntay executed in Amoy, China,
was in accordance with the law of the Republic of China, the certification of the Chinese
Consul General in the Philippines as the existence of such law is not admissible evidence in
this jurisdiction. In effect the resolution on the motion for reconsideration promulgated by the
trial court, and the decision of the majority herein, adopt the position that the testimony of
Judge Anastacio Teodoro as to the provisions of the lost will, while credible and perhaps
sufficient in extent, is not corroborated by the witnesses Go Toh and Ana Suntay and,
therefore, falls short of the requirement in section 6, Rule 77, of the Rules of Court that the
provisions of the lost will must be "clearly and distinctly proved by at least two witnesses."
That this requirement was obviously construed, to mean that the exact provisions are to be
established, may be deduced from the following dialogue between his Honor, Judge
Potenciano Pecson, and attorney Teofilo Sison, new counsel for oppositor Federico C.
Suntay, who appeared for the first time at the ex parte hearing of the oppositor's motion for
new trial on September 1, 1949:
COURT: However, Rule 77, Section 6, provides in proving a lost will, the
provisions of the lost will must be distinctly stated and certified by the Judge.
ATTY. TEOFILO SISON: Yes, Your Honor.
COURT: That presupposes that the judge could only certify to the exact
provisions of the will from the evidence presented.
ATTY. TEOFILO SISON: That is our contention, provided that provision is clearly
established by two credible witnesses so that the Court could state that in the
decision, we agree, that is the very point.
(t. s. n. 75, Session of Sept. 1, 1948)
The sound rule, however, as we have found it to be, as to the degree of proof required to
establish the contents of a lost or destroyed will, is that there is sufficient compliance if two
witnesses have substantiated the provisions affecting the disposition of the testator's
properties; and this is especially necessary to prevent the "perpetration of fraud by
permitting a presumption to supply the suppressed proof," to keep a wrong-doer from
utilizing the rule as his "most effective weapon," or to avoid the enjoyment of a "premium
from the rascality of one whose interests might suggest the destruction of a will."
Section 1865 of the Code requires that the provisions of a lost will must be clearly
and distinctly proved by at least two credible witnesses before it can be admitted to
probate; but this section must receive a liberal construction (Hook vs. Pratt, 8 Hun.
102-109) and its spirit is complied with by holding that it applies only to those
provisions which affect the disposition of the testator's property and which are of
the substance of the will.
The allegations of the contents of the will are general, and under ordinary
circumstances, would be in sufficient; but the fact alleged, if proven as alleged,
would certainly authorize the establishment of the will so far as its bequests are
concerned. To require that a copy of the will or the language of the bequests, in
detail, should be pleaded, where no copy has been preserved, and where the
memory of the witnesses does not hold the exact words, would not only deny the
substance for mere form, but would offer a premium upon the rascality of one
whose interests might suggest the destruction of a will. As said in
Anderson vs. Irwin, 101 Ill. 411: "The instrument in controversy having been
destroyed without the fault of the defendant in error ... and there not appearing to
be any copy of it in existence, it would be equivalent to denying the complainant
relief altogether to require her to prove the very terms in which it was conceived.
All that could reasonably be required of her under the circumstances could be to
show in general terms the disposition which the testator made of his property by
the instruments; that it purported to be his will and was duly attested by the
requisite number of witnesses." In Allison vs. Allison, 7 Dana 91, it was said in
speaking of the character and extent of proof required in such a case:" nor is there
any just ground to object to the proof because the witnesses have not given the
language of the will or the substance thereof. They have given the substance of
the different devises as to the property or interest devised, and to whom devised
and we would not stop, in the case of a destroyed will, to scan with rigid scrutiny
the form of the proof, provided we are satisfied of the substance of its provisions."
(Jose vs. Casler 139 Ind. 392, 38 N. E. 812).
The evidence in the case falls short of establishing the existence of such a writing,
except as it may be presumed, under the maxim Omnia preasumuntur in odium
spoliateris." There was evidence tending to show that the second will of Anne
Lambie was in the possession of Francis Lambie, and that it came to the hands of
the proponents, warranting the inference that it has been suppressed or destroyed.
If from this evidence the jury found such paper destroyed the law permits the
presumption that it was legally drawn and executed, notwithstanding the terms of
the statute, which requires the revoking instrument to be formally executed. If a will
be lost, secondary evidence may be given of its contents; if suppressed or
destroyed, the same is true; and, if necessary the law will prevent the perpetration
of a fraud by permitting a presumption to supply the suppressed proof. We cannot
assent to the proposition that the statute is so right as to be the wrongdoer's most
effective weapons. The misconduct once established to the satisfaction of the jury,
it is no hardship to the wrongdoer to say. "Produce the evidence in your
possession, or we will presume that your opponent's contention is true." When one
deliberately destroys, or purposely induces another to destroy, a written instrument
subsequently become a matter of judicial inquiry between the spoliator and an
innocent party, the latter will not be required to make strict proof of the contents of
such instrument in order to establish a right founded thereon. Brook, Leg. Max.
576, Preston vs. Preston, 132, Atl. 55, 61. (Re Lambie's Estate, 97 Mich, 55,56 N.
W. 225)
Judged from the standard set forth in the foregoing authorities, and bearing in mind that the
circumstances of this case lead to the only conclusion that the loss of the will in question is
of course imputable to those whose interests are adverse to the petitioner and the widow
Lim Billian, we have no hesitancy in holding the view that the dispositions of the properties
left by the deceased Jose B. Suntay is provided in his will which was lost or snatched in the
manner recited in the decision of this Court in the case of Lim Billian vs. Suntay, 63 Phil.,
798-797, had been more than sufficiently proved by the testimony of Judge Anastacio
Teodoro, Go Toh, and Ana Suntay, supported conclusively by the draft of the lost will
presented in evidence as Exhibit "B", and even by the testimony of oppositor Federico C.
Suntay himself.
It is to be recalled that the trial Judge, in his first decision of April 19, 1948, made the
following express findings with respect to the testimony of Judge Teodoro: "Judge Anastacio
Teodoro testified that he opened the sealed envelope when it was given to him by Go Toh
preparatory to the presentation of the petition for the probate of the said will. As the lawyer
entrusted with that task, he had to examine the will and have it copied to be reproduced or
appended to the petition. He could not do otherwise if he is worth his salt as a good lawyer.
He could not perform the stunt of "blind flying" in the judicial firmament. Every step must be
taken with certainty and precision under any circumstances. He could not have talked about
the attorney's fees with Go Toh, unless he has not examined the will beforehand. And, when
he was shown Exhibit B, he did not hesitate in declaring that it was the exact draft of the will
that was inside the envelope (Exhibit A), the testimony of Atty. Alberto Barretto to the
contrary notwithstanding."
We should not forget, in this connection, that in the resolution on the motion for
reconsideration the trial Judge reiterated the findings in his decision, although as regards
the testimony of Judge Teodoro admittedly "the only credible witness who testified as to the
provisions of the will," he observed that Judge Teodoro had the draft Exhibit "B" in his hands
while testifying. We cannot see any justifying for the observation, assuming that Judge
Teodoro consulted the draft, since even the trial Judge granted that he "could have testified
clearly and distinctly on the provisions of the said lost will, because he had kept the will in
his safe, in his office, for three days, after opening it, and he is well versed in Spanish
language in which the will was written." As a matter of fact, however, it is not true that Judge
Teodoro had the draft in question before him while testifying as may be seen from the
following passages of the transcript:
Q. And, have you read that will which was inside this envelope, Exhibit A? — "A. Yes.
Q. Do you remember more or less the contents of the will?
ATTY. FERRIN: With our objection, the best evidence is original will itself, Your Honor.
ATTY. RECTO: We are precisely proving by means of secondary evidence, the contents of
the will, because according to the Supreme Court, and that is a fact already decided, that
the will of Jose B. Suntay was lost and that is res adjudicata.
COURT: Witness may answer.
WITNESS: I remember the main features of the will because as I said I was the
one fighting for the postponement of the hearing of the intestate case because I
was asked by Don Alberto Barretto to secure the postponement until the will that
was executed by the deceased is sent here by the widow from China, with whom
we communicated with several letters, and when the will arrived. I had to check the
facts as appearing in the will, and examined fully in connection with the facts
alleged in the intestate, and there was a striking fact in the intestate that Apolonio
Suntay has..
ATTY. FERRIN: (Interrupting) May we ask that the witness answer categorically
the questions of Atty. Recto, it seems that the answers of the witness are kilometric
...
ATTY. RECTO: Sometimes the question cannot be answered fully unless the
witness would relate and give all the facts.
COURT: The Attorney for the Administrator may move for the striking out of any
testimony that is not responsive to the question.
ATTY. FERRIN: That is why, our objection, the answer is out of the question.
COURT: Atty. Recto may propound another question.
ATTY. RECTO: I heard the witness was saying something and he has not finished
the sentence, and I want to ask the Court just to allow the witness to finish his
sentence.
COURT: You may finish.
WITNESS: "A. There was a sentence, the point I was trying to check first was
whether the value of the estate left by the deceased was SIXTY THOUSAND
PESOS (P60,000.00) as Apolonio Suntay made it appear in his petition, and when
I looked at the original will, I found out that it was several hundred thousand pesos,
several thousands of pesos, hundreds of pesos, that was very striking fact to me
because the petition for intestate was for SIXTY THOUSAND PESOS
(P60,000.00), and I came to know that it was worth more than SEVEN HUNDRED
THOUSAND (P700,000.00) PESOS.
Q. Do you remember, Judge, the disposition of the will, the main disposition of the
will? — "A. Yes, because our client were the widow, Maria Natividad Lim Billian,
and his son, Silvino, the only son in the second marriage, that was very important
for me to know.
Q. How were the properties distributed according to that will?- "A. The properties
were distributed into three (3) parts, one part which we call legitima corta, were
equally distributed to the ten (10) children, nine (9) in the first marriage, and one
(1) in the second marriage with Maria Natividad Lim Billian. The other third, the
betterment was given to four (4) children, Concepcion, and Apolonio getting a quiet
substantial share in the betterment, around SIXTY THOUSAND (P60,000.00) for
Concepcion, Apolonio the amount of SEVENTY THOUSAND (70,000,00) PESOS
or little over, and then about ONE HUNDRED THOUSAND (P100,000.00) PESOS
of the betterment in favor of Silvino, the minor of the second marriage, and to Jose
equal to Concepcion.
Q. So the betterment, as I understand from you went to four (4) children?-"A. Yes.
Q. Silvino in the second marriage, Concepcion, Apolonio and Jose in the first
marriage? — " A. Yes.
Q. What about the free disposal?-" A. The free disposal was disposed in favor of
the widow, Maria Natividad Lim Billian and Silvino, his minor son in equal parts..
Q. What about, if you remember, if there was something in the will in connection
with that particular of the usufruct of the widow? — "A. It was somewhat
incorporated into the assets of the estate left by the deceased.
Q. Do you remember the number of pages of which that will consisted? — "A.
Twenty-three (23) pages.
 Q. Do you remember if the pages were signed by the testator? — "A. Yes, sir, it
was signed.
Q. And the foot of the testament or the end of the testament, was it signed by the
testator? — "A. Yes, sir, and the attestation clause was the last page signed by the
three instrumental witnesses, Alberto Barretto, one Chinaman Go Toh, and Manuel
Lopez, my former Justice of the Peace of Hagonoy.
Q. Do you remember if there witnesses signed on the different pages of the will?
— "A. Yes, sir, they signed with their name signatures.
Q. Showing you this document consisting of twenty-three (23) pages in Spanish
and which document appears already attached to this same testamentary
proceedings and already marked as EXHIBIT B, will you please tell the Court if and
for instance on page eight (8) of this document, pagina octavo, it says, there are
handwritings in pencil, some of which read as follows: "Los cinco-octavos (5/8)
partes corresponds a mi hijo Emiliano", can you recognize whose handwriting is
that? — "A. From my best estimate it is the handwriting of Don Alberto Barretto.
Q. About the end of the same page eight (8) pagina octavo, of the same document
Exhibit B, there is also the handwriting in pencil which reads: "La otra sexta parte
(6.a) corresponde a Bonifacio Lopez", can you recognize that handwriting? — "A.
Yes, sir, this is the handwriting of Don Alberto Barretto, and I wish to call the
attention of the Court to compare letter "B" which is in capital letter with the
signature of Don Alberto Barretto in the envelope, "Alberto Barretto" and stroke
identifies one hand as having written those words.
Q. Will you please go over cursorily this document, Exhibit B composed of twenty-
three (23) pages and please tell the Court if this document had anything to do with
the will which according to you was contained in the envelope, Exhibit A? — "A.
This is exactly the contents of the original will which I received and kept in my
office inside the safe for three (3) days, and I precisely took special case in the
credits left by the deceased, and I remember among them, were the De Leon
family, and Sandiko, well known to me, and then the disposition of the estate,
divided into three (3) equal parts, and I noticed that they are the contents of the will
read.
His Honor, Judge Pecson, was positive in his first decision that "the testimony of Judge
Anastacio Teodoro is corroborated by Go Toh, one of the attesting witnesses, in his
deposition (Exhibit D-1)." Yet in setting aside his first decision, he remarked that Go Toh's
testimony did not prove clearly and distinctly the provision of the lost will, because: "He did
not, and he could not have done so even if he tried because the original will was not read to
him nor by him before or at the signing of the same. It was written in Spanish and he did not
and does not understand the Spanish language. Neither was there any occasion for him to
have the contents of the said will, after its execution and sealing inside the envelope (Exhibit
A), read to him, because it was opened only when Judge Teodoro had examined it and then
subsequently snatched from Go Toh."
The later position thus taken by Judge Pecson is palpably inconsistent with the following
unequivocal statements of Go Toh contained in hid disposition taken in Amoy, China, on
April 17, 1938, and in oppositor's Exhibit "6":
26. State what you know of the contents of that will.
. . . . Regarding (1) expenditures (2) Philippine citizenship; (3) Distribution of
estates among children (4) Taking care of grave lot; (5) guardianship of Silvino
Suntay and (6) after paying his debts he will have approximately 720,000 pesos
left. This amount will be divided into three equal parts of 240,000 pesos each. The
first part is to be divided equally among the ten children born by the first and
second wives and the second part among the three sons Silvino Suntay, 75,000
approximately; Apolonio Suntay, 50,000 pesos approximately; Jose Suntay and
Concepcion Suntay, 36,000 each approximately. The third part is to be divided
between Maria Lim Billian and Silvino Suntay; each will get approximately 110,000
pesos. Silvino Suntay will get a total of 210,000 pesos approximately, Maria
Natividad Lim Billian a total of 290,000 approximately, and Apolonio Suntay a total
of 80,000 approximately, Concepcion Suntay and Jose Suntay will get 60,000
pesos each approximately. The rest of the children will get approximately 29,000
each. The way of distribution of the property of Jose B. Suntay, movable and
immovable, and the outstanding debts to be collected was arranged by Jose B.
Suntay.
xxx xxx xxx
78. On the occasion of the execution of the testament of Jose B. Suntay, state whether or
not you say Exhibit B — ... Yes.
79. In the affirmative case, state if you know who had the possession of Exhibit B and the
testament the first time you saw them on that occasion. — ... Yes, I know who had
possession of them.
80. Can you say whether or not Jose B. Suntay happened to get those documents later on,
on that same occasion? — ... He got them after the execution.
81. Please name the person who gave those documents to Mr. Suntay. — ... Alberto
Barretto gave the documents to Jose B. Suntay.
82. Did the person who gave those documents to Suntay say anything to him (Suntay) at
the time of giving them? — ... Yes.
83. If so what was it that he said, if he said any? — ... He said, "You had better see if you
want any correction."
84. What did Mr. Suntay do after those documents were given to him? — ... Jose B. Suntay
looked at them and then gave one copy to Manuel Lopez for checking.
85. State whether or not Mr. Suntay gave one of those documents to another man. — ...
Yes.
86. In the affirmative case, can you say which of the two documents was given and who the
man was? — ... Yes he gave Exhibit B to Manuel Lopez.
87. State whether or not Mr. Suntay said something to the man to whom he gave one of
those documents. — ... Yes.
88. In the affirmative case can you repeat more or less what Mr. Suntay said to that man?
— ... He told him to read it for checking.
89. State if you know what did the man do with one of those documents given to him. — ...
He took it and read it for checking.
90. What did in turn Mr. Suntay do with the other one left with him? — ... Jose B. Suntay
looked at the original and checked them.
91. What was done with those documents later on if there was anything done with them? —
... After checking, Jose B. Suntay put Exhibit B in his pocket and had the original signed and
executed.
92. What was done with the testament of Jose B. Suntay after it was signed by the testator
and its witnesses? — ... It was taken away by Jose B. Suntay. (Exhibit D, D-1.)
Q. Did you know the contents of this envelope? — "A. I knew that it was a will.
Q. But did you know the provisions of the will? — "A. It is about the distribution of the
property to the heirs.
Q. Did you know how the property was distributed according to the will? — "A. I know that
more than P500,000 was for the widow and her son, more than P100,000 for the heirs that
are in the family. (Exhibit "6", p. 28).
Q. You stated that you were one of the witnesses to the will and that the will was written in
Spanish. Was it written in typewriting or in handwriting of somebody? — "A. That will was
written in typewriting.
Q. Did you read the contents of that will, or do you know the contents of that will? — A. No,
sir, because I do not know Spanish.
Q. How do you know that it was the will of Jose B. Suntay ? — "A. Because I was one of the
signers and I saw it." (Exhibit "6", p. 19.)
22. Do you understand the language in which that will was written? — ... I know a little
Spanish.
23. Do you talk or write that language? I can write and talk a little Spanish. (Exhibits D, D-1.)
As to Ana Suntay's corroborating testimony, Judge Pecson aptly made the following
findings: "Ana Suntay, one of the heirs and who would be affected adversely by the
legalization of the will in question, also testified on rebuttal that she saw the original will in
the possession of Manuel Suntay immediately after the snatching. She read it and she
particularly remembers the manner in which the properties were to be distributed. Exhibit B
was shown to her on the witness stand and she declared that the provision regarding the
distribution of the properties in said Exhibit B is the same as that contained in the original
will. Said testimony of Ana Suntay, therefore, belies the testimony of Atty. Alberto Barretto."
And yet in the resolution on the motion for new trial, the trial Judge had to state that "Ana
Suntay on rebuttal did not, likewise, prove clearly and distinctly the provisions of the said
lost will, because she has not had enough schooling and she does not possess adequate
knowledge of the Spanish language as shown by the fact that she had to testify in Tagalog
on the witness stand." The potent error committed by Judge Pecson in reversing his views
as regards Ana's testimony, is revealed readily in the following portions of the transcript:
We are really at a loss to understand why, without any change whatsoever in the evidence,
the trial Judge reversed his first decision, particularly when he announced therein that "it is
now incumbent upon this court to delve into the evidence whether or not Jose B. Suntay,
deceased, left a will (the draft of which is Exhibit B) and another will which was executed
and probated in Amoy, China." His action is indeed surprising when we take into account
the various circumstancial features presently to be stated, that clearly confirm the testimony
of Judge Anastacio Teodoro, G. Toh and Ana Suntay, or otherwise constitute
visible indicia of oppositor's desire to frustrate the wishes of his father, Jose B. Suntay.
In our opinion the most important piece of evidence in favor of the petitioner's case is the
draft of the lost will, Exhibit "B." Its authenticity cannot be seriously questioned, because
according to the trial Judge himself, oppositor's own witness, Atty. Alberto Barretto, admitted
it to be "identical in substance and form to the second draft which he prepared in
typewriting." Indeed, all the "A's" and "B's" in the handwritten insertions of the draft are very
similar to those in Barretto's admittedly genuine signature on the envelope, Exhibit "A." The
finding of Judge Pecson on the point in his first decision (reiterated expressly in the
resolution on the motion for new trial), should control, not only because it is in accordance
with the evidence but because the oppositor had failed and did not even attempt to have the
trial Judge reconsider or reverse his factual conclusions. The draft, Exhibit "B," having been
positively identified by the witnesses for the petitioner to be an exact copy of the lost will of
Jose B. Suntay, is therefore conclusive. Oppositor's effort to show that said draft was never
signed in final form, and was thought of merely to deceive petitioner's mother, Lim Billian,
and that the will actually executed and put in the envelope, Exhibit "A", provided that the
testator's estate would be divided equally among his heirs, as in the case of intestacy, was
necessarily futile because, if this allegation is true, the will would not have been "snatched"
from Go Toh — and the loss certainly cannot be imputed to the widow Lim Billian or the
petitioner; the snatched will would have been produced to put an end to petitioner's and his
mother's claim for greater inheritance or participation under the lost will; and the envelope
containing the first will providing for equal shares, would not have been entrusted to the
care and custody of the widow Lim Billian.
It is very noteworthy that out of the nine children of the first marriage, only Angel, Jose and
Federico Suntay had opposed the probate of the will in question; the rest, namely, Ana,
Aurora, Concepcion, Lourdes, Manuel and Emiliano Suntay, having expressly manifested in
their answer that they had no opposition thereto, since the petitioner's alternative petition
"seeks only to put into effect the testamentary disposition and wishes of their late father."
This attitude is significantly an indication of the justness of petitioner's claim, because it
would have been to their greater advantage if they had sided with oppositor Federico
Suntay in his theory of equal inheritance for all the children of Jose B. Suntay. Under the
lost will or its draft Exhibit "B", each of the Suntay children would receive only some P
25,000.00, whereas in case of intestacy or under the alleged will providing for equal shares,
each of them would receive some P100,000.00. And yet the Suntay children other than
Angel, Jose and Federico had chosen to give their conformity to the alternative petition in
this case.
Another unequivocal confirmation of the lost will is the will which Jose B. Suntay executed in
Amoy, Fookien, China, on January 4, 1931, and probated in Amoy District Court, China,
containing virtually the same provisions as those in the draft Exhibit "B". What better
evidence is there of an man's desire or insistence to express his last wishes than the
execution of a will reiterating the same provisions contained in an earlier will. Assuming that
the Chinese will cannot be probated in the jurisdiction, its probative value as corroborating
evidence cannot be ignored.
Oppositor himself had admitted having read the will in question under which the widow Lim
Billian was favored; and this again in a way goes to corroborate the evidence for the
petitioner as to the contents of the will sought to be probated.
COURT:
 Q. Have you read the supposed will or the alleged will of your father? — "A. Yes,
sir.
COURT:
Q. Can you tell the court the share or participation in the inheritance of Maria
Natividad Lim Billian according to the will? —
A. Yes sir, she will inherit, I think, two-thirds (2/3) of the estate, in other words she
is the most favored in the will, so when they sold that, they sold everything, they
are selling everything even the conjugal property. (t. s. n. 228-229.)
The decision of the majority leans heavily on the testimony of Atty. Alberto Barretto, forgetful
perhaps of the fact that the trial Judge gave no credence to said witness. It should be
repeated that Judge Pecson reiterated in the resolution on the motion for new trial all his
findings in the first decision. If as Atty. Barretto testified, Lim Billian was entitled under the
will actually signed by Jose Suntay only to P10,000.00, in addition to properties in China
value at P15,000.00, the fees of P25,000.00 admittedly asked by him would absorb her
entire inheritance; and this would normally not be done by any law practitioner. Upon the
other hand, there is evidence to the effect that Atty. Barretto might have become hostile to
the petitioner and his mother Lim Billian in view of the latter's refusal to agree to the amount
of P25,000.00 and her offer to pay only P100.00. There is also evidence tending to show
that as early as 1942, Atty. Barretto was paid by oppositor Federico Suntay the sum of
P16,000.00 which, although allegedly for services in the testate proceedings, was paid out
of the personal funds of said oppositors to supply Atty. Barretto's needs. This circumstances
perhaps further explains why the latter had to support the side of Federico Suntay.
We have quoted in full the decision of this court in the "snatching" case and the first
decision of Judge Pecson in this case, both in the hope and in the belief (1) that the first
would reveal the manner by which those adversely affected had planned to prevent the last
wishes of the deceased Jose B. Suntay from being carried on, and (2) that the second, by
the facts correctly recited therein and by the force and accuracy of its logic would amply
show the weakness and utter lack of foundation of the resolution on the motion for
reconsideration. We have set forth at length pertinent portions of the testimony of various
witnesses to demonstrate more plainly the plausibility of the original decision of Judge
Pecson, and the latter's consequent bad judgment in having forced himself to accomplish a
somersault, a feat which the majority, in my opinion, have mistakenly commended. We have
found this to be one of the cases of this court in which we have had occasion to participate,
where there can be absolutely no doubt as to the result — outright reversal — for which,
with due respect to the majority opinion, we vote without hesitancy.
Montemayor and Jugo, JJ., concur.
RESOLUTION
5 November 1954
PADILLA, J.:
This is a motion for reconsideration of the decision promulgated on 31 July 1954, affirming
the decree of the Court of First Instance of Bulacan which disallowed the alleged last will
and testament executed in November 1929 and the alleged last will and testament executed
in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay, without pronouncement
as to costs, on grounds that will presently be taken up and discussed.
Appellant points to an alleged error in the decision where it states that —
. . . This petition was denied because of the loss of said will after the filing of the
petition and before the hearing thereof, . . .
because according to him the "will was lost before not after (the) filing of the petition." This
slight error, if it is an error at all, does not, and cannot, after the conclusions and
pronouncements made in the judgment rendered in the case. In his alternative petition the
appellant alleges:
4. That on October 15, 1934, Marian Natividad Lim Billian, the mother of herein
petitioner filed a petition in this court for the allowance and probate of a last will
and testament executed, and signed in the Philippines in the year 1929 by said
deceased Jose B. Suntay. (P. 3, amended record on appeal.)
If such will and testament was already lost or destroyed at the time of the filing of the
petition by Maria Natividad Lim Billian (15 October 1934), the appellant would have so
stated and alleged. If Anastacio Teodoro, a witness for the appellant, is to be believed when
he testified —
. . . that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), ...
Go Toh arrived at his law office in the De Los Reyes Building and left an envelope
wrapped in red handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October
19470 . . .
and —
If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro
and returned by the latter to the former because they could not agree on the
amount of fees, . . .
then on 15 October 1934, the date of the filing of the petition, the will was not yet lost. And if
the facts alleged in paragraph 5 of the appellant's alternative petition which states:
That this Honorable Court, after hearing, denied the aforesaid petition for probate
filed by Maria Natividad Lim Billian in view of the loss and/or destruction of said
will subsequent to the filing of said petition and prior to the hearing thereof, and the
 alleged insufficiency of the evidence adduced to established the loss and/or
destruction of the said will, (Emphasis supplied, P. 3, amended record on appeal.)
may be relied upon, then the alleged error pointed out by the appellant, if it is an error, is
due to the allegation in said paragraph of his alternative petition. Did the appellant allege the
facts in said paragraph with reckless abandon? Or, did the appellant make the allegation as
erroneously as that which he made in paragraph 10 of the alternative petition that "his will
which was lost and ordered probated by our Supreme Court in G. R. No. 44276, above
referred to?" (P. 7, amended record on appeal.) This Court did not order the probate of the
will in said case because if it did, there would have been no further and subsequent
proceedings in the case after the decision of this Court referred to had been rendered and
had become final. Be that as it may, whether the loss of the will was before or subsequent
to the filing of the petition, as already stated, the fact would not affect in the slightest degree
the conclusions and pronouncements made by this Court.
The appellant advances the postulate that the decision of this Court in the case of Lim
Billian vs. Suntay, G. R. No. 44276, 63 Phil., 793, constitutes res judicata on these points:
(a) that only one will was prepared by attorney Barretto, and (b) that the issue to be
resolved by the trial court was whether the draft (Exhibit B) is a true copy or draft of the
snatched will, and contends that these points already adjudged were overlooked in the
majority opinion. The decision of this Court in the case referred to does not constitute res
judicata on the points adverted to by the appellant. The only point decided in that case is
that "the evidence is sufficient to establish the loss of the document contained in the
envelope." In the opinion of this Court, this circumstance justified "the presentation of
secondary evidence of its contents and of whether it was executed with all the essential and
necessary legal formalities." That is all that was decided. This Court further said:
The trial of this case was limited to the proof of loss of the will, and from what has
taken place we deduce that it was not petitioner's intention to raise, upon the
evidence adduced by her, and other points involved herein, namely, as we have
heretofore indicated, whether Exhibit B is a true copy of the will and whether the
latter was executed with all the formalities required by law for its probate. The
testimony of Alberto Barretto bears importantly in this connection. (P. 796, supra.)
Appellant's contention that the question before the probate court was whether the draft
(Exhibit B) is a true copy or draft of the snatched will is a mistaken interpretation and view of
the decision of this Court in the case referred to, for if this Court did make that
pronouncement, which, of course, it did not, such pronouncement would be contrary to law
and would have been a grievous and irreparable mistake, because what the Court passed
upon and decided in that case, as already stated, is that there was sufficient evidence to
prove the loss of the of the will and that the next step was to prove by secondary evidence
its due execution in accordance with the formalities of the law and its contents, clearly and
districtly, by the testimony of at least two credible witnesses. 1
The appellant invokes Rule 133 to argue that Rule 77 should not have been applied to the
case but the provisions of section 623 of the Code of Civil Procedure (Act No. 190), for the
reason that this case had been commenced before the Rules of Court took effect. But Rule
133 cited by the appellant provides:
These rules shall take effect on July 1, 1940. They shall govern all cases brought
after they take effect, and also all further proceedings in cases then pending,
except to the extent that in the opinion of the court their application would not be
feasible or would work injustice, in which event the former procedure shall
apply. (Emphasis supplied.)
So, Rule 77 applies to this case because it was a further proceedings in a case then
pending. But even if section 623 of the Code of Civil Procedure were to be applied, still the
evidence to prove the contents and due execution of the will and the fact of its unauthorized
destruction, cancellation, or obliteration must be established "by full evidence to the
satisfaction of the Court." This requirement may even be more strict and exacting than the
two-witness rule provided for in section 6, Rule 77. The underlying reason for the exacting
provisions found in section 623 of Act No. 190 and section 6, Rule 77, the product of
experience and wisdom, is to prevent imposters from foisting, or at least to make for them
difficult to foist, upon probate courts alleged last wills or testaments that were never
executed.
In commenting unfavorably upon the decree disallowing the lost will, both the appellant and
the dissenting opinion suffer from an infirmity born of a mistaken premise that all the
conclusions and pronouncements made by the probate court in the first decree which
allowed the probate of the lost will of the late Jose B. Suntay must be accepted by this
Court. This is an error. It must be borne in mind that this is not a petition for a writ
of certiorari to review a judgment of the Court of Appeals on questions of law where the
findings of fact by said Court are binding upon this Court. This is an appeal from the probate
court, because the amount involved in the controversy exceeds P50,000, and this Court in
the exercise of its appellate jurisdiction must review the evidence and the findings of fact
and legal pronouncements made by the probate court. If such conclusions and
pronouncements are unjustified and erroneous this Court is in duty bound to correct them.
Not long after entering the first decree the probate court was convinced that it had
committed a mistake, so it set aside the decree and entered another. This Court affirmed
the last decree not precisely upon the facts found by the probate court but upon facts found
by it after a careful review and scrutiny of the evidence, parole and documentary. After such
review this Court has found that the provisions of the will had not been established clearly
and distinctly by at least two credible witnesses and that conclusion is unassailable because
it is solidly based on the established facts and in accordance with law.
The appellant and the dissent try to make much out of a pleading filed by five (5) children
and the widow of Apolonio Suntay, another child of the deceased by the first marriage,
wherein they state that —
. . . in answer to the alternative petition filed in these proceedings by Silvino
Suntay, through counsel, dated June 18, 1947, to this Honorable Court respectfully
state that, since said alternative petition seeks only to put into effect the
testamentary disposition and wishes of their late father, they have no opposition
thereto. (Pp. 71-72, amended record on appeal.)
Does that mean that they were consenting to the probate of the lost will? Of course not. If
the lost will sought to be probated in the alternative petition was really the will of their late
father, they, as good children, naturally had, could have, no objection to its probate. That is
all that their answer implies and means. But such lack of objection to the probate of the lost
will does not relieve the proponent thereof or the party interested in its probate from
establishing its due execution and proving clearly and distinctly the provisions thereof at
least two credible witnesses. It does not mean that they accept the draft Exhibit B as an
exact and true copy of the lost will and consent to its probate. Far from it. In the pleading
copied in the dissent, which the appellant has owned and used as argument in the motion
for reconsideration, there is nothing that may bolster up his contention. Even if all the
children were agreeable to the probate of said lost will, still the due execution of the lost will
must be established and the provisions thereof proved clearly and distinctly by at least two
credible witnesses, as provided for in section 6, Rule 77. The appellant's effort failed to
prove what is required by the rule. Even if the children of the deceased by the first marriage,
out of generosity, were willing to donate their shares in the estate of their deceased father or
parts thereof to their step mother and her only child, the herein appellant, still the donation,
if validly made, would not dispense with the proceedings for the probate of the will in
accordance with section 6, Rule 77, because the former may convey by way of donation
their shares in the state of their deceased father or parts thereof to the latter only after the
decree disallowing the will shall have been rendered and shall have become final. If the lost
will is allowed to probate there would be no room for such donation except of their
respective shares in the probated will.
The part of the deposition of Go Toh quoted in the motion for reconsideration which
appellant underscores does not refer to Go Toh but to Manuel Lopez. Even if Go Toh heard
Manuel Lopez read the draft (Exhibit B) for the purpose of checking it up with the original
held and read by Jose B. Suntay, Go Toh should not have understood the provisions of the
will because he knew very little of the Spanish language in which the will was written
(answer to 22nd and 23rd interrogatories and to X-2 cross-interrogatory). In fact, he testifies
in his deposition that all he knows about the contents of the lost will was revealed to him by
Jose B. Suntay at the time it was executed (answers to 25th interrogatory and to X-4 and X-
8 cross-interrogatories); that Jose B. Suntay told him that the contents thereof are the same
as those of the draft [Exhibit B] (answers to 33rd interrogatory and to X-8 cross-
interrogatory); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese
and he read the translation (answer to the 67th interrogatory); that he did not read the will
and did not compare it (check it up) with the draft [Exhibit B] (answers to X-6 and X-20
cross-interrogatories). We repeat that —
. . . all of Go Toh's testimony by deposition on the provisions of the alleged lost will
is hearsay, because he came to know or he learned of them from information given
him by Jose B. Suntay and from reading the translation of the draft (Exhibit B) into
Chinese.
This finding cannot be contested and assailed.
The appellant does not understand how the Court came to the conclusion that Ana Suntay,
a witness for the appellant could not have read the part of the will on adjudication.
According to her testimony "she did not read the whole will but only the adjudication," which,
this Court found, "is inconsistent with her testimony in chief (to the effect) that "after
Apolonio read that portion, then he turned over the document of Manuel, and he went
away." (P. 528, t. s. n., hearing of 24 February 1948.) And appellant asks the question:
"Who went away? Was it Manuel or Apolonio?" In answer to his own question the appellant
says: "The more obvious inference is that it was Apolonio and not Manuel who went away."
This inference made by the appellant not only is not obvious but it is also illogical, if it be
borne in mind that Manuel came to the house of Apolonio and it happened that Ana was
there, according to her testimony. So the sentence "he went away" in Ana's testimony must
logically and reasonably refer to Manuel, who was a caller or visitor in the house of his
brother Apolonio and not to the latter who was in his house. If it was Apolonio who "went
away," counsel for the appellant could have brought that out by a single question. As the
evidence stands could it be said that the one who went away was Apolonio and not
Manuel? The obvious answer is that it was Manuel. That inference is the result of a straight
process of reasoning and clear thinking.
There is a veiled insinuation in the dissent that Alberto Barretto testified as he did because
he had been paid by Federico C. Suntay the sum of P16,000. Federico C. Suntay testifies
on the point thus —
Q. You mentioned in your direct testimony that you paid certain amount to Atty.
Alberto Barretto for services rendered, how much did you pay? — A. Around
SIXTEEN THOUSAND (P16,000.00).
Q. When did you make the payment? — A. During the Japanese time.
Q. Did you state that fact in any accounts you presented to the Court? — A. I do
not quite remember that.
. . . (P. 180, t. s. n., hearing of 24 October 1947.)
Q. When you made that payment, was (it) your intention to charge it to the state or
to collect it later from the estate? — A. Yes, sir.
Q. More or less when was such payment made, during the Japanese time, what
particular month and year, do you remember? — A. I think in 1942.
Q. And you said you paid him because of services he rendered? — A. Upon the
order to the Court.
Q. And those services were precisely because he made a will and he made a will
which was lost, the will of Jose B. Suntay? ... (P. 181, t. s. n., supra.) — A. I think I
remember correctly according to ex-Representative Vera who is the administrator
whom I followed at that time, that was paid according to the services rendered by
Don Alberto Barretto with regard to our case in the testamentaria but he also
rendered services to my father.
Q. At least your Counsel said that there was an order of the Court ordering you to
pay that, do you have that copy of the order? — A. Yes, sir, I have, but I think that
was burned. (P. 184, t. s. n., supra.).
So the sum of P16,000 was paid upon recommendation of the former administrator and
order of the probate court for services rendered by Alberto Barretto not only in the probate
proceedings that also for services rendered to his father. But if this sum of P16,000 paid to
Alberto Barretto upon recommendation of the previous administrator and order of the
probate court for professional services rendered in the probate proceedings and to the
deceased in his lifetime be taken against his truthfulness and veracity as to affect adversely
his testimony, what about the professional services of Anastacio Teodoro who appeared in
this case as one of the attorneys for the petitioner-appellant? (P. 2, t. s. n., hearing of 13
October 1947.)Would that not likewise or by the same token affect his credibility? It is the
latter's interest more compelling than the former's?
For the foregoing reasons, the motion for reconsideration is denied.
Pablo, Bengzon, Reyes, A. and Concepcion, JJ., concur.
Paras, C.J., dissenting:
For the same reasons and considerations set forth in detail in my dissent promulgated on
July 31, 1954, I vote to grant the motion for reconsideration.
Montemayor and Jugo, JJ., concur.
G.R. No. 133743 February 6, 2007
EDGAR SAN LUIS, Petitioner,
vs.
FELICIDAD SAN LUIS, Respondent.
x ---------------------------------------------------- x
G.R. No. 134029 February 6, 2007
RODOLFO SAN LUIS, Petitioner,
vs.
FELICIDAD SAGALONGOS alias FELICIDAD SAN LUIS, Respondent.
DECISION
YNARES-SANTIAGO, J.:
Before us are consolidated petitions for review assailing the February 4, 1998 Decision 1 of
the Court of Appeals in CA-G.R. CV No. 52647, which reversed and set aside the
September 12, 1995 2 and January 31, 1996 3Resolutions of the Regional Trial Court of
Makati City, Branch 134 in SP. Proc. No. M-3708; and its May 15, 1998
Resolution 4 denying petitioners’ motion for reconsideration.
The instant case involves the settlement of the estate of Felicisimo T. San Luis (Felicisimo),
who was the former governor of the Province of Laguna. During his lifetime, Felicisimo
contracted three marriages. His first marriage was with Virginia Sulit on March 17, 1942 out
of which were born six children, namely: Rodolfo, Mila, Edgar, Linda, Emilita and Manuel.
On August 11, 1963, Virginia predeceased Felicisimo.
Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin, with whom he had a
son, Tobias. However, on October 15, 1971, Merry Lee, an American citizen, filed a
Complaint for Divorce 5 before the Family Court of the First Circuit, State of Hawaii, United
States of America (U.S.A.), which issued a Decree Granting Absolute Divorce and Awarding
Child Custody on December 14, 1973. 6
On June 20, 1974, Felicisimo married respondent Felicidad San Luis, then surnamed
Sagalongos, before Rev. Fr. William Meyer, Minister of the United Presbyterian at Wilshire
Boulevard, Los Angeles, California, U.S.A. 7 He had no children with respondent but lived
with her for 18 years from the time of their marriage up to his death on December 18, 1992.
Thereafter, respondent sought the dissolution of their conjugal partnership assets and the
settlement of Felicisimo’s estate. On December 17, 1993, she filed a petition for letters of
administration 8 before the Regional Trial Court of Makati City, docketed as SP. Proc. No.
M-3708 which was raffled to Branch 146 thereof.
Respondent alleged that she is the widow of Felicisimo; that, at the time of his death, the
decedent was residing at 100 San Juanico Street, New Alabang Village, Alabang, Metro
Manila; that the decedent’s surviving heirs are respondent as legal spouse, his six children
by his first marriage, and son by his second marriage; that the decedent left real properties,
both conjugal and exclusive, valued at ₱30,304,178.00 more or less; that the decedent does
not have any unpaid debts. Respondent prayed that the conjugal partnership assets be
liquidated and that letters of administration be issued to her.
On February 4, 1994, petitioner Rodolfo San Luis, one of the children of Felicisimo by his
first marriage, filed a motion to dismiss 9 on the grounds of improper venue and failure to
state a cause of action. Rodolfo claimed that the petition for letters of administration should
have been filed in the Province of Laguna because this was Felicisimo’s place of residence
prior to his death. He further claimed that respondent has no legal personality to file the
petition because she was only a mistress of Felicisimo since the latter, at the time of his
death, was still legally married to Merry Lee.
On February 15, 1994, Linda invoked the same grounds and joined her brother Rodolfo in
seeking the dismissal 10of the petition. On February 28, 1994, the trial court issued an
Order 11 denying the two motions to dismiss.
Unaware of the denial of the motions to dismiss, respondent filed on March 5, 1994 her
opposition 12 thereto. She submitted documentary evidence showing that while Felicisimo
exercised the powers of his public office in Laguna, he regularly went home to their house in
New Alabang Village, Alabang, Metro Manila which they bought sometime in 1982. Further,
she presented the decree of absolute divorce issued by the Family Court of the First Circuit,
State of Hawaii to prove that the marriage of Felicisimo to Merry Lee had already been
dissolved. Thus, she claimed that Felicisimo had the legal capacity to marry her by virtue of
paragraph 2, 13 Article 26 of the Family Code and the doctrine laid down in Van Dorn v.
Romillo, Jr. 14
Thereafter, Linda, Rodolfo and herein petitioner Edgar San Luis, separately filed motions for
reconsideration from the Order denying their motions to dismiss. 15 They asserted that
paragraph 2, Article 26 of the Family Code cannot be given retroactive effect to validate
respondent’s bigamous marriage with Felicisimo because this would impair vested rights in
derogation of Article 256 16 of the Family Code.
On April 21, 1994, Mila, another daughter of Felicisimo from his first marriage, filed a motion
to disqualify Acting Presiding Judge Anthony E. Santos from hearing the case.
On October 24, 1994, the trial court issued an Order 17 denying the motions for
reconsideration. It ruled that respondent, as widow of the decedent, possessed the legal
standing to file the petition and that venue was properly laid. Meanwhile, the motion for
disqualification was deemed moot and academic 18 because then Acting Presiding Judge
Santos was substituted by Judge Salvador S. Tensuan pending the resolution of said
motion.
Mila filed a motion for inhibition 19 against Judge Tensuan on November 16, 1994. On even
date, Edgar also filed a motion for reconsideration 20 from the Order denying their motion for
reconsideration arguing that it does not state the facts and law on which it was based.
On November 25, 1994, Judge Tensuan issued an Order 21 granting the motion for
inhibition. The case was re-raffled to Branch 134 presided by Judge Paul T. Arcangel.
On April 24, 1995, 22 the trial court required the parties to submit their respective position
papers on the twin issues of venue and legal capacity of respondent to file the petition. On
May 5, 1995, Edgar manifested 23 that he is adopting the arguments and evidence set forth
in his previous motion for reconsideration as his position paper. Respondent and Rodolfo
filed their position papers on June 14, 24 and June 20, 25 1995, respectively.
On September 12, 1995, the trial court dismissed the petition for letters of administration. It
held that, at the time of his death, Felicisimo was the duly elected governor and a resident
of the Province of Laguna. Hence, the petition should have been filed in Sta. Cruz, Laguna
and not in Makati City. It also ruled that respondent was without legal capacity to file the
petition for letters of administration because her marriage with Felicisimo was bigamous,
thus, void ab initio. It found that the decree of absolute divorce dissolving Felicisimo’s
marriage to Merry Lee was not valid in the Philippines and did not bind Felicisimo who was
a Filipino citizen. It also ruled that paragraph 2, Article 26 of the Family Code cannot be
retroactively applied because it would impair the vested rights of Felicisimo’s legitimate
children.
Respondent moved for reconsideration 26 and for the disqualification 27 of Judge Arcangel
but said motions were denied. 28
Respondent appealed to the Court of Appeals which reversed and set aside the orders of
the trial court in its assailed Decision dated February 4, 1998, the dispositive portion of
which states:
WHEREFORE, the Orders dated September 12, 1995 and January 31, 1996 are hereby
REVERSED and SET ASIDE; the Orders dated February 28 and October 24, 1994 are
REINSTATED; and the records of the case is REMANDED to the trial court for further
proceedings. 29
The appellante court ruled that under Section 1, Rule 73 of the Rules of Court, the term
"place of residence" of the decedent, for purposes of fixing the venue of the settlement of
his estate, refers to the personal, actual or physical habitation, or actual residence or place
of abode of a person as distinguished from legal residence or domicile. It noted that
although Felicisimo discharged his functions as governor in Laguna, he actually resided in
Alabang, Muntinlupa. Thus, the petition for letters of administration was properly filed in
Makati City.
The Court of Appeals also held that Felicisimo had legal capacity to marry respondent by
virtue of paragraph 2, Article 26 of the Family Code and the rulings in Van Dorn v. Romillo,
Jr. 30 and Pilapil v. Ibay-Somera. 31 It found that the marriage between Felicisimo and Merry
Lee was validly dissolved by virtue of the decree of absolute divorce issued by the Family
Court of the First Circuit, State of Hawaii. As a result, under paragraph 2, Article 26,
Felicisimo was capacitated to contract a subsequent marriage with respondent. Thus –
With the well-known rule – express mandate of paragraph 2, Article 26, of the Family Code
of the Philippines, the doctrines in Van Dorn, Pilapil, and the reason and philosophy behind
the enactment of E.O. No. 227, — there is no justiciable reason to sustain the individual
view — sweeping statement — of Judge Arc[h]angel, that "Article 26, par. 2 of the Family
Code, contravenes the basic policy of our state against divorce in any form whatsoever."
Indeed, courts cannot deny what the law grants. All that the courts should do is to give force
and effect to the express mandate of the law. The foreign divorce having been obtained by
the Foreigner on December 14, 1992, 32 the Filipino divorcee, "shall x x x have capacity to
remarry under Philippine laws". For this reason, the marriage between the deceased and
petitioner should not be denominated as "a bigamous marriage.
Therefore, under Article 130 of the Family Code, the petitioner as the surviving spouse can
institute the judicial proceeding for the settlement of the estate of the deceased. x x x 33
34
Edgar, Linda, and Rodolfo filed separate motions for reconsideration which were denied
by the Court of Appeals.
On July 2, 1998, Edgar appealed to this Court via the instant petition for review on
certiorari. 35 Rodolfo later filed a manifestation and motion to adopt the said petition which
was granted. 36
In the instant consolidated petitions, Edgar and Rodolfo insist that the venue of the subject
petition for letters of administration was improperly laid because at the time of his death,
Felicisimo was a resident of Sta. Cruz, Laguna. They contend that pursuant to our rulings in
Nuval v. Guray 37 and Romualdez v. RTC, Br. 7, Tacloban City, 38"residence" is
synonymous with "domicile" which denotes a fixed permanent residence to which when
absent, one intends to return. They claim that a person can only have one domicile at any
given time. Since Felicisimo never changed his domicile, the petition for letters of
administration should have been filed in Sta. Cruz, Laguna.
Petitioners also contend that respondent’s marriage to Felicisimo was void and bigamous
because it was performed during the subsistence of the latter’s marriage to Merry Lee. They
argue that paragraph 2, Article 26 cannot be retroactively applied because it would impair
vested rights and ratify the void bigamous marriage. As such, respondent cannot be
considered the surviving wife of Felicisimo; hence, she has no legal capacity to file the
petition for letters of administration.
The issues for resolution: (1) whether venue was properly laid, and (2) whether respondent
has legal capacity to file the subject petition for letters of administration.
The petition lacks merit.
Under Section 1, 39 Rule 73 of the Rules of Court, the petition for letters of administration of
the estate of Felicisimo should be filed in the Regional Trial Court of the province "in which
he resides at the time of his death." In the case of Garcia Fule v. Court of Appeals, 40 we
laid down the doctrinal rule for determining the residence – as contradistinguished from
domicile – of the decedent for purposes of fixing the venue of the settlement of his estate:
[T]he term "resides" connotes ex vi termini "actual residence" as distinguished from "legal
residence or domicile." This term "resides," like the terms "residing" and "residence," is
elastic and should be interpreted in the light of the object or purpose of the statute or rule in
which it is employed. In the application of venue statutes and rules – Section 1, Rule 73 of
the Revised Rules of Court is of such nature – residence rather than domicile is the
significant factor. Even where the statute uses the word "domicile" still it is construed as
meaning residence and not domicile in the technical sense. Some cases make a distinction
between the terms "residence" and "domicile" but as generally used in statutes fixing venue,
the terms are synonymous, and convey the same meaning as the term "inhabitant." In other
words, "resides" should be viewed or understood in its popular sense, meaning, the
personal, actual or physical habitation of a person, actual residence or place of abode. It
signifies physical presence in a place and actual stay thereat. In this popular sense, the
term means merely residence, that is, personal residence, not legal residence or domicile.
Residence simply requires bodily presence as an inhabitant in a given place, while domicile
requires bodily presence in that place and also an intention to make it one’s domicile. No
particular length of time of residence is required though; however, the residence must be
more than temporary. 41 (Emphasis supplied)
It is incorrect for petitioners to argue that "residence," for purposes of fixing the venue of the
settlement of the estate of Felicisimo, is synonymous with "domicile." The rulings in Nuval
and Romualdez are inapplicable to the instant case because they involve election cases.
Needless to say, there is a distinction between "residence" for purposes of election laws
and "residence" for purposes of fixing the venue of actions. In election cases, "residence"
and "domicile" are treated as synonymous terms, that is, the fixed permanent residence to
which when absent, one has the intention of returning. 42 However, for purposes of fixing
venue under the Rules of Court, the "residence" of a person is his personal, actual or
physical habitation, or actual residence or place of abode, which may not necessarily be his
legal residence or domicile provided he resides therein with continuity and
consistency. 43 Hence, it is possible that a person may have his residence in one place and
domicile in another.
In the instant case, while petitioners established that Felicisimo was domiciled in Sta. Cruz,
Laguna, respondent proved that he also maintained a residence in Alabang, Muntinlupa
from 1982 up to the time of his death. Respondent submitted in evidence the Deed of
Absolute Sale 44 dated January 5, 1983 showing that the deceased purchased the aforesaid
property. She also presented billing statements 45 from the Philippine Heart Center and
Chinese General Hospital for the period August to December 1992 indicating the address of
Felicisimo at "100 San Juanico, Ayala Alabang, Muntinlupa." Respondent also presented
proof of membership of the deceased in the Ayala Alabang Village Association 46 and Ayala
Country Club, Inc., 47 letter-envelopes 48 from 1988 to 1990 sent by the deceased’s children
to him at his Alabang address, and the deceased’s calling cards 49 stating that his home/city
address is at "100 San Juanico, Ayala Alabang Village, Muntinlupa" while his
office/provincial address is in "Provincial Capitol, Sta. Cruz, Laguna."
From the foregoing, we find that Felicisimo was a resident of Alabang, Muntinlupa for
purposes of fixing the venue of the settlement of his estate. Consequently, the subject
petition for letters of administration was validly filed in the Regional Trial Court 50 which has
territorial jurisdiction over Alabang, Muntinlupa. The subject petition was filed on December
17, 1993. At that time, Muntinlupa was still a municipality and the branches of the Regional
Trial Court of the National Capital Judicial Region which had territorial jurisdiction over
Muntinlupa were then seated in Makati City as per Supreme Court Administrative Order No.
3. 51 Thus, the subject petition was validly filed before the Regional Trial Court of Makati
City.
Anent the issue of respondent Felicidad’s legal personality to file the petition for letters of
administration, we must first resolve the issue of whether a Filipino who is divorced by his
alien spouse abroad may validly remarry under the Civil Code, considering that Felicidad’s
marriage to Felicisimo was solemnized on June 20, 1974, or before the Family Code took
effect on August 3, 1988. In resolving this issue, we need not retroactively apply the
provisions of the Family Code, particularly Art. 26, par. (2) considering that there is sufficient
jurisprudential basis allowing us to rule in the affirmative.
The case of Van Dorn v. Romillo, Jr. 52 involved a marriage between a foreigner and his
Filipino wife, which marriage was subsequently dissolved through a divorce obtained abroad
by the latter. Claiming that the divorce was not valid under Philippine law, the alien spouse
alleged that his interest in the properties from their conjugal partnership should be
protected. The Court, however, recognized the validity of the divorce and held that the alien
spouse had no interest in the properties acquired by the Filipino wife after the divorce. Thus:
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 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. 53
As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longer
be considered married to the alien spouse. Further, she should not be required to perform
her marital duties and obligations. It held:
To maintain, as private respondent does, that, under our laws, petitioner has to be
considered still marriedto 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.54 (Emphasis added)
This principle was thereafter applied in Pilapil v. Ibay-Somera 55 where the Court recognized
the validity of a divorce obtained abroad. In the said case, it was held that the alien spouse
is not a proper party in filing the adultery suit against his Filipino wife. The Court stated that
"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." 56
Likewise, in Quita v. Court of Appeals, 57 the Court stated that where a Filipino is divorced
by his naturalized foreign spouse, the ruling in Van Dorn applies. 58 Although decided on
December 22, 1998, the divorce in the said case was obtained in 1954 when the Civil Code
provisions were still in effect.
The significance of the Van Dorn case to the development of limited recognition of divorce
in the Philippines cannot be denied. The ruling has long been interpreted as severing
marital ties between parties in a mixed marriage and capacitating the Filipino spouse to
remarry as a necessary consequence of upholding the validity of a divorce obtained abroad
by the alien spouse. In his treatise, Dr. Arturo M. Tolentino cited Van Dorn stating that "if the
foreigner obtains a valid foreign divorce, the Filipino spouse shall have capacity to remarry
under Philippine law." 59In Garcia v. Recio, 60 the Court likewise cited the aforementioned
case in relation to Article 26. 61
In the recent case of Republic v. Orbecido III, 62 the historical background and legislative
intent behind paragraph 2, Article 26 of the Family Code were discussed, to wit:
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209,
otherwise known as the "Family Code," which took effect on August 3, 1988. Article 26
thereof states:
All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No.
227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A
second paragraph was added to Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in
force in the country where they were solemnized, and valid there as such, shall also be valid
in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis
supplied)
xxxx
Legislative Intent
Records of the proceedings of the Family Code deliberations showed that the intent of
Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil
Code Revision Committee, is to avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who, after obtaining a divorce, is no longer married to
the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn
v. Romillo, Jr. The Van Dorn case involved a marriage between a Filipino citizen and a
foreigner. The Court held therein that a divorce decree validly obtained by the alien
spouse is valid in the Philippines, and consequently, the Filipino spouse is
capacitated to remarry under Philippine law. 63 (Emphasis added)
As such, the Van Dorn case is sufficient basis in resolving a situation where a divorce is
validly obtained abroad by the alien spouse. With the enactment of the Family Code and
paragraph 2, Article 26 thereof, our lawmakers codified the law already established through
judicial precedent.1awphi1.net
Indeed, when the object of a marriage is defeated by rendering its continuance intolerable to
one of the parties and productive of no possible good to the community, relief in some way
should be obtainable. 64 Marriage, being a mutual and shared commitment between two
parties, cannot possibly be productive of any good to the society where one is considered
released from the marital bond while the other remains bound to it. Such is the state of
affairs where the alien spouse obtains a valid divorce abroad against the Filipino spouse, as
in this case.
Petitioners cite Articles 15 65 and 17 66 of the Civil Code in stating that the divorce is void
under Philippine law insofar as Filipinos are concerned. However, in light of this Court’s
rulings in the cases discussed above, the Filipino spouse should not be discriminated
against in his own country if the ends of justice are to be served. 67 In Alonzo v. Intermediate
Appellate Court, 68 the Court stated:
But as has also been aptly observed, we test a law by its results; and likewise, we may add,
by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern
of the judge should be to discover in its provisions the intent of the lawmaker.
Unquestionably, the law should never be interpreted in such a way as to cause injustice as
this is never within the legislative intent. An indispensable part of that intent, in fact, for we
presume the good motives of the legislature, is to render justice.
Thus, we interpret and apply the law not independently of but in consonance with justice.
Law and justice are inseparable, and we must keep them so. To be sure, there are some
laws that, while generally valid, may seem arbitrary when applied in a particular case
because of its peculiar circumstances. In such a situation, we are not bound, because only
of our nature and functions, to apply them just the same, in slavish obedience to their
language. What we do instead is find a balance between the word and the will, that justice
may be done even as the law is obeyed.
As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is
worded, yielding like robots to the literal command without regard to its cause and
consequence. "Courts are apt to err by sticking too closely to the words of a law," so we are
warned, by Justice Holmes again, "where these words import a policy that goes beyond
them."
xxxx
More than twenty centuries ago, Justinian defined justice "as the constant and perpetual
wish to render every one his due." That wish continues to motivate this Court when it
assesses the facts and the law in every case brought to it for decision. Justice is always an
essential ingredient of its decisions. Thus when the facts warrants, we interpret the law in a
way that will render justice, presuming that it was the intention of the lawmaker, to begin
with, that the law be dispensed with justice. 69
Applying the above doctrine in the instant case, the divorce decree allegedly obtained by
Merry Lee which absolutely allowed Felicisimo to remarry, would have vested Felicidad with
the legal personality to file the present petition as Felicisimo’s surviving spouse. However,
the records show that there is insufficient evidence to prove the validity of the divorce
obtained by Merry Lee as well as the marriage of respondent and Felicisimo under the laws
of the U.S.A. In Garcia v. Recio, 70 the Court laid down the specific guidelines for pleading
and proving foreign law and divorce judgments. It held that presentation solely of the
divorce decree is insufficient and that proof of its authenticity and due execution must be
presented. Under Sections 24 and 25 of Rule 132, a writing or document may be proven as
a public or official record of a foreign country by either (1) an official publication or (2) a copy
thereof attested by the officer having legal custody of the document. If the record is not kept
in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service stationed in the foreign
country in which the record is kept and (b) authenticated by the seal of his office. 71
With regard to respondent’s marriage to Felicisimo allegedly solemnized in California,
U.S.A., she submitted photocopies of the Marriage Certificate and the annotated text 72 of
the Family Law Act of California which purportedly show that their marriage was done in
accordance with the said law. As stated in Garcia, however, the Court cannot take judicial
notice of foreign laws as they must be alleged and proved. 73
Therefore, this case should be remanded to the trial court for further reception of evidence
on the divorce decree obtained by Merry Lee and the marriage of respondent and
Felicisimo.
Even assuming that Felicisimo was not capacitated to marry respondent in 1974,
nevertheless, we find that the latter has the legal personality to file the subject petition for
letters of administration, as she may be considered the co-owner of Felicisimo as regards
the properties that were acquired through their joint efforts during their cohabitation.
Section 6, 74 Rule 78 of the Rules of Court states that letters of administration may be
granted to the surviving spouse of the decedent. However, Section 2, Rule 79 thereof also
provides in part:
SEC. 2. Contents of petition for letters of administration. – A petition for letters of
administration must be filed by an interested person and must show, as far as known to the
petitioner: x x x.
An "interested person" has been defined as one who would be benefited by the estate, such
as an heir, or one who has a claim against the estate, such as a creditor. The interest must
be material and direct, and not merely indirect or contingent. 75
In the instant case, respondent would qualify as an interested person who has a direct
interest in the estate of Felicisimo by virtue of their cohabitation, the existence of which was
not denied by petitioners. If she proves the validity of the divorce and Felicisimo’s capacity
to remarry, but fails to prove that her marriage with him was validly performed under the
laws of the U.S.A., then she may be considered as a co-owner under Article 144 76 of the
Civil Code. This provision governs the property relations between parties who live together
as husband and wife without the benefit of marriage, or their marriage is void from the
beginning. It provides that the property acquired by either or both of them through their work
or industry or their wages and salaries shall be governed by the rules on co-ownership. In a
co-ownership, it is not necessary that the property be acquired through their joint labor,
efforts and industry. Any property acquired during the union is prima facie presumed to have
been obtained through their joint efforts. Hence, the portions belonging to the co-owners
shall be presumed equal, unless the contrary is proven. 77
money, property or industry. Absent proof of the extent thereof, their contributions and
corresponding shares shall be presumed to be equal.
xxxx
In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of co-
ownership of properties acquired by the parties to a bigamous marriage and an adulterous
relationship, respectively, we ruled that proof of actual contribution in the acquisition of the
property is essential. x x x
As in other civil cases, the burden of proof rests upon the party who, as determined by the
pleadings or the nature of the case, asserts an affirmative issue. Contentions must be
proved by competent evidence and reliance must be had on the strength of the party’s own
evidence and not upon the weakness of the opponent’s defense. x x x 81
In view of the foregoing, we find that respondent’s legal capacity to file the subject petition
for letters of administration may arise from her status as the surviving wife of Felicisimo or
as his co-owner under Article 144 of the Civil Code or Article 148 of the Family Code.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals reinstating and
affirming the February 28, 1994 Order of the Regional Trial Court which denied petitioners’
motion to dismiss and its October 24, 1994 Order which dismissed petitioners’ motion for
reconsideration is AFFIRMED. Let this case be REMANDED to the trial court for further
proceedings.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice

Meanwhile, if respondent fails to prove the validity of both the divorce and the marriage, the
applicable provision would be Article 148 of the Family Code which has filled the hiatus in
Article 144 of the Civil Code by expressly regulating the property relations of couples living
together as husband and wife but are incapacitated to marry. 78 In Saguid v. Court of
Appeals, 79 we held that even if the cohabitation or the acquisition of property occurred
before the Family Code took effect, Article 148 governs. 80 The Court described the property
regime under this provision as follows:

The regime of limited co-ownership of property governing the union of parties who are not
legally capacitated to marry each other, but who nonetheless live together as husband and
wife, applies to properties acquired during said cohabitation in proportion to their respective
contributions. Co-ownership will only be up to the extent of the proven actual contribution of

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 Decision 2 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 Receipt 13 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-Appeal20 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
Valeroso’s 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
Valeroso’s 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
Valeroso’s 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 Valeroso’s arguments through his Letter-Appeal, together with the
OSG’s 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 Guzman’s 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
petitioner’s 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 respondent’s 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.
Valeroso’s 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 vehicle’s
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 officer’s 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 arrestee’s 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 latter’s reach.39Otherwise 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 Valeroso’s 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
defendant’s 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 Valeroso’s 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.
Constitution, occupies a position of primacy in the fundamental law way above the articles
on governmental power.55
Without the illegally seized firearm, Valeroso’s 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

Clearly, the search made was illegal, a violation of Valeroso’s 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

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.
G.R. No. 168129 April 24, 2007
COMMISSIONER OF INTERNAL REVENUE, Petitioner,
vs.
PHILIPPINE HEALTH CARE PROVIDERS, INC., Respondent.
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."1^vvphi1.net
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 ₱100,505,030.26 and DST in the amount of
₱124,196,610.92, or a total of ₱224,702,641.18 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 respondent's 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
₱22,054,831.75 inclusive of 25% surcharge plus 20% interest from January 20, 1997 until
fully paid for the 1996 VAT deficiency and ₱31,094,163.87 inclusive of 25% surcharge plus
20% interest from January 20, 1998 until paid for the 1997 VAT
deficiency.1awphi1.nét 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 Resolution3 dated March 23, 2003, the CTA granted respondent's 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 petitioner's 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 petitioner's "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 petitioner's 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 petitioner's business.
Such being the case, this court is convinced that petitioner's 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 Resolution4 dated May 9, 2005.
Hence, the instant petition for review on certiorari raising these two issues: (1) whether
respondent's 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 petitioner's assessment of its VAT liabilities for
taxable years 1996 and 1997.
Section 1025 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 x x.
Section 1036 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 Care's health care program are entitled to preventive,
diagnostic, and corrective medical services to be dispensed by Health Care's 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 Care's health care program and pay an annual fee. Enrollment in
Health Care's 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 respondent's 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," respondent's 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, respondent's 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 respondent's 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.13Commissioner 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 BIR's own issuances but later
was suddenly saddled with deficiency taxes due to its subsequent ruling changing the
category of the taxpayer's 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.
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 6991 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.
19912 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
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. Pangramuyen17 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.20 The 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, Griño-Aquino, Regalado, Davide, Jr., Romero,
Nocon, Bellosillo and Melo, JJ., concur.
Gutierrez, Jr., J., concur in the result.
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.
MUÑOZ 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 6-½ inches and a wooden
handle of 5-1/4 inches, or an overall length of 11-¾ 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.
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 8½ 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.
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 that abetssubversion,
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.
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. 6This 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.