Republic of the Philippines

SUPREME COURT
Baguio City

EN BANC

G.R. No. 180016 April 29, 2014

LITO CORPUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of Court, dated November
5, 2007, of petitioner Lito Corpuz (petitioner), seeking to reverse and set aside the Decision 1 dated March
22, 2007 and Resolution2 dated September 5, 2007 of the Court of Appeals (CA), which affirmed with
modification the Decision3 dated July 30, 2004 of the Regional Trial Court (RTC), Branch 46, San Fernando
City, finding the petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315,
paragraph (1), sub-paragraph (b) of the Revised Penal Code.

The antecedent facts follow.

Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in Olongapo City
sometime in 1990. Private complainant was then engaged in the business of lending money to casino
players and, upon hearing that the former had some pieces of jewelry for sale, petitioner approached him
on May 2, 1991 at the same casino and offered to sell the said pieces of jewelry on commission basis.
Private complainant agreed, and as a consequence, he turned over to petitioner the following items: an 18k
diamond ring for men; a woman's bracelet; one (1) men's necklace and another men's bracelet, with an
aggregate value of ₱98,000.00, as evidenced by a receipt of even date. They both agreed that petitioner
shall remit the proceeds of the sale, and/or, if unsold, to return the same items, within a period of 60 days.
The period expired without petitioner remitting the proceeds of the sale or returning the pieces of jewelry.
When private complainant was able to meet petitioner, the latter promised the former that he will pay the
value of the said items entrusted to him, but to no avail.

Thus, an Information was filed against petitioner for the crime of estafa, which reads as follows:

That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, after having received from one Danilo
Tangcoy, one (1) men's diamond ring, 18k, worth ₱45,000.00; one (1) three-baht men's bracelet, 22k, worth
₱25,000.00; one (1) two-baht ladies' bracelet, 22k, worth ₱12,000.00, or in the total amount of Ninety-Eight
Thousand Pesos (₱98,000.00), Philippine currency, under expressed obligation on the part of said accused
to remit the proceeds of the sale of the said items or to return the same, if not sold, said accused, once in
possession of the said items, with intent to defraud, and with unfaithfulness and abuse of confidence, and
far from complying with his aforestated obligation, did then and there wilfully, unlawfully and feloniously
misappropriate, misapply and convert to his own personal use and benefit the aforesaid jewelries (sic) or
the proceeds of the sale thereof, and despite repeated demands, the accused failed and refused to return
the said items or to remit the amount of Ninety- Eight Thousand Pesos (₱98,000.00), Philippine currency,
to the damage and prejudice of said Danilo Tangcoy in the aforementioned amount.

CONTRARY TO LAW.

On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not guilty. Thereafter,
trial on the merits ensued.
The prosecution, to prove the above-stated facts, presented the lone testimony of Danilo Tangcoy. On the
other hand, the defense presented the lone testimony of petitioner, which can be summarized, as follows:

Petitioner and private complainant were collecting agents of Antonio Balajadia, who is engaged in the
financing business of extending loans to Base employees. For every collection made, they earn a
commission. Petitioner denied having transacted any business with private complainant.

However, he admitted obtaining a loan from Balajadia sometime in 1989 for which he was made to sign a
blank receipt. He claimed that the same receipt was then dated May 2, 1991 and used as evidence against
him for the supposed agreement to sell the subject pieces of jewelry, which he did not even see.

After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the Information.
The dispositive portion of the decision states:

WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the felony of Estafa
under Article 315, paragraph one (1), subparagraph (b) of the Revised Penal Code;

there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to vary the penalty
imposable;

accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of liberty consisting of an
imprisonment under the Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2) MONTHS of
Prision Correccional in its medium period AS MINIMUM, to FOURTEEN (14) YEARS AND EIGHT (8)
MONTHS of Reclusion Temporal in its minimum period AS MAXIMUM; to indemnify private complainant
Danilo Tangcoy the amount of ₱98,000.00 as actual damages, and to pay the costs of suit.

SO ORDERED.

The case was elevated to the CA, however, the latter denied the appeal of petitioner and affirmed the
decision of the RTC, thus:

WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30, 2004 of the RTC of
San Fernando City (P), Branch 46, is hereby AFFIRMED with MODIFICATION on the imposable prison
term, such that accused-appellant shall suffer the indeterminate penalty of 4 years and 2 months of prision
correccional, as minimum, to 8 years of prision mayor, as maximum, plus 1 year for each additional
₱10,000.00, or a total of 7 years. The rest of the decision stands.

SO ORDERED.

Petitioner, after the CA denied his motion for reconsideration, filed with this Court the present petition stating
the following grounds:

A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION AND

APPRECIATION BY THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS,
WHICH ARE MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE RULE;

B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING
THAT THE CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH THE
SAME DID NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE REVISED PENAL CODE
IN THAT -

1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT [PIECES OF] JEWELRY
SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD;

2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE INFORMATION AS OF 05

JULY 1991 WAS MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO BY THE PRIVATE
COMPLAINANT WHICH WAS 02 MAY 1991;
C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING
THAT DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE
PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED;

D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING
THAT THE PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE DOUBT ALTHOUGH -

1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE INCIDENT;

2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE STRAIGHTFORWARD AND LOGICAL,

CONSISTENT WITH HUMAN EXPERIENCE;

3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS CASE;

4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.

In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the following counter-
arguments:

The exhibits were properly admitted inasmuch as petitioner failed to object to their admissibility.

The information was not defective inasmuch as it sufficiently established the designation of the offense and
the acts complained of.

The prosecution sufficiently established all the elements of the crime charged.

This Court finds the present petition devoid of any merit.

The factual findings of the appellate court generally are conclusive, and carry even more weight when said
court affirms the findings of the trial court, absent any showing that the findings are totally devoid of support
in the records, or that they are so glaringly erroneous as to constitute grave abuse of discretion. 4 Petitioner
is of the opinion that the CA erred in affirming the factual findings of the trial court. He now comes to this
Court raising both procedural and substantive issues.

According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in evidence a receipt
dated May 2, 1991 marked as Exhibit "A" and its submarkings, although the same was merely a photocopy,
thus, violating the best evidence rule. However, the records show that petitioner never objected to the
admissibility of the said evidence at the time it was identified, marked and testified upon in court by private
complainant. The CA also correctly pointed out that petitioner also failed to raise an objection in his
Comment to the prosecution's formal offer of evidence and even admitted having signed the said receipt.
The established doctrine is that when a party failed to interpose a timely objection to evidence at the time
they were offered in evidence, such objection shall be considered as waived. 5

Another procedural issue raised is, as claimed by petitioner, the formally defective Information filed against
him. He contends that the Information does not contain the period when the pieces of jewelry were
supposed to be returned and that the date when the crime occurred was different from the one testified to
by private complainant. This argument is untenable. The CA did not err in finding that the Information was
substantially complete and in reiterating that objections as to the matters of form and substance in the
Information cannot be made for the first time on appeal. It is true that the gravamen of the crime of estafa
under Article 315, paragraph 1, subparagraph (b) of the RPC is the appropriation or conversion of money
or property received to the prejudice of the owner6 and that the time of occurrence is not a material
ingredient of the crime, hence, the exclusion of the period and the wrong date of the occurrence of the
crime, as reflected in the Information, do not make the latter fatally defective. The CA ruled:

x x x An information is legally viable as long as it distinctly states the statutory designation of the offense
and the acts or omissions constitutive thereof. Then Section 6, Rule 110 of the Rules of Court provides that
a complaint or information is sufficient if it states the name of the accused;
the designation of the offense by the statute; the acts or omissions complained of as constituting the
offense; the name of the offended party; the approximate time of the commission of the offense, and the
place wherein the offense was committed. In the case at bar, a reading of the subject Information shows
compliance with the foregoing rule. That the time of the commission of the offense was stated as " on or
about the fifth (5th) day of July, 1991" is not likewise fatal to the prosecution's cause considering that Section
11 of the same Rule requires a statement of the precise time only when the same is a material ingredient
of the offense. The gravamen of the crime of estafa under Article 315, paragraph 1 (b) of the Revised Penal
Code (RPC) is the appropriation or conversion of money or property received to the prejudice of the
offender. Thus, aside from the fact that the date of the commission thereof is not an essential element of
the crime herein charged, the failure of the prosecution to specify the exact date does not render the
Information ipso facto defective. Moreover, the said date is also near the due date within which accused-
appellant should have delivered the proceeds or returned the said [pieces of jewelry] as testified upon by
Tangkoy, hence, there was sufficient compliance with the rules. Accused-appellant, therefore, cannot now
be allowed to claim that he was not properly apprised of the charges proferred against him. 7

It must be remembered that petitioner was convicted of the crime of Estafa under Article 315, paragraph 1
(b) of the RPC, which reads:

ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means mentioned
hereinbelow.

1. With unfaithfulness or abuse of confidence, namely:

xxxx

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal
property received by the offender in trust or on commission, or for administration, or under any other
obligation involving the duty to make delivery of or to return the same, even though such obligation be
totally or partially guaranteed by a bond; or by denying having received such money, goods, or other
property; x x x

The elements of estafa with abuse of confidence are as follows: (a) that money, goods or other personal
property is received by the offender in trust, or on commission, or for administration, or under any other
obligation involving the duty to make delivery of, or to return the same; (b) that there be misappropriation
or conversion of such money or property by the offender or denial on his part of such receipt; (c) that such
misappropriation or conversion or denial is to the prejudice of another; and (d) that there is a demand made
by the offended party on the offender.8

Petitioner argues that the last element, which is, that there is a demand by the offended party on the
offender, was not proved. This Court disagrees. In his testimony, private complainant narrated how he was
able to locate petitioner after almost two (2) months from the time he gave the pieces of jewelry and asked
petitioner about the same items with the latter promising to pay them. Thus:

PROS. MARTINEZ

q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been finished on 5
July 1991, the question is what happens (sic) when the deadline came?

a I went looking for him, sir.

q For whom?

a Lito Corpuz, sir.

q Were you able to look (sic) for him?

a I looked for him for a week, sir.

q Did you know his residence?

a Yes, sir.

q Did you go there?

a Yes, sir.

q Did you find him?

a No, sir.

q Were you able to talk to him since 5 July 1991?

a I talked to him, sir.

q How many times?

a Two times, sir.

q What did you talk (sic) to him?

a About the items I gave to (sic) him, sir.

q Referring to Exhibit A-2?

a Yes, sir, and according to him he will take his obligation and I asked him where the items are and he
promised me that he will pay these amount, sir.

q Up to this time that you were here, were you able to collect from him partially or full?

a No, sir.9

No specific type of proof is required to show that there was demand.10 Demand need not even be formal; it
may be verbal.11 The specific word "demand" need not even be used to show that it has indeed been made
upon the person charged, since even a mere query as to the whereabouts of the money [in this case,
property], would be tantamount to a demand.12 As expounded in Asejo v. People:13

With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa need
not be formal or written. The appellate court observed that the law is silent with regard to the form of demand
in estafa under Art. 315 1(b), thus:

When the law does not qualify, We should not qualify. Should a written demand be necessary, the law
would have stated so. Otherwise, the word "demand" should be interpreted in its general meaning as to
include both written and oral demand. Thus, the failure of the prosecution to present a written demand as
evidence is not fatal.

In Tubb v. People, where the complainant merely verbally inquired about the money entrusted to the
accused, we held that the query was tantamount to a demand, thus:

x x x [T]he law does not require a demand as a condition precedent to the existence of the crime of
embezzlement. It so happens only that failure to account, upon demand for funds or property held in trust,
is circumstantial evidence of misappropriation. The same way, however, be established by other proof,
such as that introduced in the case at bar.14

In view of the foregoing and based on the records, the prosecution was able to prove the existence of all
the elements of the crime. Private complainant gave petitioner the pieces of jewelry in trust, or on
commission basis, as shown in the receipt dated May 2, 1991 with an obligation to sell or return the same
within sixty (60) days, if unsold. There was misappropriation when petitioner failed to remit the proceeds of
those pieces of jewelry sold, or if no sale took place, failed to return the same pieces of jewelry within or
after the agreed period despite demand from the private complainant, to the prejudice of the latter.

Anent the credibility of the prosecution's sole witness, which is questioned by petitioner, the same is
unmeritorious. Settled is the rule that in assessing the credibility of witnesses, this Court gives great respect
to the evaluation of the trial court for it had the unique opportunity to observe the demeanor of witnesses
and their deportment on the witness stand, an opportunity denied the appellate courts, which merely rely
on the records of the case.15 The assessment by the trial court is even conclusive and binding if not tainted
with arbitrariness or oversight of some fact or circumstance of weight and influence, especially when such
finding is affirmed by the CA.16 Truth is established not by the number of witnesses, but by the quality of
their testimonies, for in determining the value and credibility of evidence, the witnesses are to be weighed
not numbered.17

As regards the penalty, while this Court's Third Division was deliberating on this case, the question of the
continued validity of imposing on persons convicted of crimes involving property came up. The legislature
apparently pegged these penalties to the value of the money and property in 1930 when it enacted the
Revised Penal Code. Since the members of the division reached no unanimity on this question and since
the issues are of first impression, they decided to refer the case to the Court en banc for consideration and
resolution. Thus, several amici curiae were invited at the behest of the Court to give their academic opinions
on the matter. Among those that graciously complied were Dean Jose Manuel Diokno, Dean Sedfrey M.
Candelaria, Professor Alfredo F. Tadiar, the Senate President, and the Speaker of the House of
Representatives. The parties were later heard on oral arguments before the Court en banc, with Atty. Mario
L. Bautista appearing as counsel de oficio of the petitioner.

After a thorough consideration of the arguments presented on the matter, this Court finds the following:

There seems to be a perceived injustice brought about by the range of penalties that the courts continue to
impose on crimes against property committed today, based on the amount of damage measured by the
value of money eighty years ago in 1932. However, this Court cannot modify the said range of penalties
because that would constitute judicial legislation. What the legislature's perceived failure in amending the
penalties provided for in the said crimes cannot be remedied through this Court's decisions, as that would
be encroaching upon the power of another branch of the government. This, however, does not render the
whole situation without any remedy. It can be appropriately presumed that the framers of the Revised Penal
Code (RPC) had anticipated this matter by including Article 5, which reads:

ART. 5. Duty of the court in connection with acts which should be repressed but which are not covered by
the law, and in cases of excessive penalties. - Whenever a court has knowledge of any act which it may
deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall
report to the Chief Executive, through the Department of Justice, the reasons which induce the court to
believe that said act should be made the subject of penal legislation.

In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such
statement as may be deemed proper, without suspending the execution of the sentence, when a strict
enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty,
taking into consideration the degree of malice and the injury caused by the offense. 18

The first paragraph of the above provision clearly states that for acts bourne out of a case which is not
punishable by law and the court finds it proper to repress, the remedy is to render the proper decision and
thereafter, report to the Chief Executive, through the Department of Justice, the reasons why the same act
should be the subject of penal legislation. The premise here is that a deplorable act is present but is not the
subject of any penal legislation, thus, the court is tasked to inform the Chief Executive of the need to make
that act punishable by law through legislation. The second paragraph is similar to the first except for the
situation wherein the act is already punishable by law but the corresponding penalty is deemed by the court
as excessive. The remedy therefore, as in the first paragraph is not to suspend the execution of the
sentence but to submit to the Chief Executive the reasons why the court considers the said penalty to be
non-commensurate with the act committed. Again, the court is tasked to inform the Chief Executive, this
time, of the need for a legislation to provide the proper penalty.

In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined that in Article 5, the
duty of the court is merely to report to the Chief Executive, with a recommendation for an amendment or
modification of the legal provisions which it believes to be harsh. Thus:

This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," that is, that there can
exist no punishable act except those previously and specifically provided for by penal statute.

No matter how reprehensible an act is, if the law-making body does not deem it necessary to prohibit its
perpetration with penal sanction, the Court of justice will be entirely powerless to punish such act.

Under the provisions of this article the Court cannot suspend the execution of a sentence on the ground
that the strict enforcement of the provisions of this Code would cause excessive or harsh penalty. All that
the Court could do in such eventuality is to report the matter to the Chief Executive with a recommendation
for an amendment or modification of the legal provisions which it believes to be harsh.20

Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon C. Aquino and
retired Associate Justice Carolina C. Griño-Aquino, in their book, The Revised Penal Code, 21 echoed the
above-cited commentary, thus:

The second paragraph of Art. 5 is an application of the humanitarian principle that justice must be tempered
with mercy. Generally, the courts have nothing to do with the wisdom or justness of the penalties fixed by
law. "Whether or not the penalties prescribed by law upon conviction of violations of particular statutes are
too severe or are not severe enough, are questions as to which commentators on the law may fairly differ;
but it is the duty of the courts to enforce the will of the legislator in all cases unless it clearly appears that a
given penalty falls within the prohibited class of excessive fines or cruel and unusual punishment." A petition
for clemency should be addressed to the Chief Executive.22

There is an opinion that the penalties provided for in crimes against property be based on the current
inflation rate or at the ratio of ₱1.00 is equal to ₱100.00 . However, it would be dangerous as this would
result in uncertainties, as opposed to the definite imposition of the penalties. It must be remembered that
the economy fluctuates and if the proposed imposition of the penalties in crimes against property be
adopted, the penalties will not cease to change, thus, making the RPC, a self-amending law. Had the
framers of the RPC intended that to be so, it should have provided the same, instead, it included the earlier
cited Article 5 as a remedy. It is also improper to presume why the present legislature has not made any
moves to amend the subject penalties in order to conform with the present times. For all we know, the
legislature intends to retain the same penalties in order to deter the further commission of those punishable
acts which have increased tremendously through the years. In fact, in recent moves of the legislature, it is
apparent that it aims to broaden the coverage of those who violate penal laws. In the crime of Plunder, from
its original minimum amount of ₱100,000,000.00 plundered, the legislature lowered it to ₱50,000,000.00.
In the same way, the legislature lowered the threshold amount upon which the Anti-Money Laundering Act
may apply, from ₱1,000,000.00 to ₱500,000.00.

It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not seem to be
excessive compared to the proposed imposition of their corresponding penalties. In Theft, the provisions
state that:

Art. 309. Penalties. — Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more
than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the thing stolen exceeds the latter
amount the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for
each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed
twenty years. In such cases, and in connection with the accessory penalties which may be imposed and
for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be.

2. The penalty of prision correccional in its medium and maximum periods, if the value of the thing stolen
is more than 6,000 pesos but does not exceed 12,000 pesos.

3. The penalty of prision correccional in its minimum and medium periods, if the value of the property stolen
is more than 200 pesos but does not exceed 6,000 pesos.

4. Arresto mayor in its medium period to prision correccional in its minimum period, if the value of the
property stolen is over 50 pesos but does not exceed 200 pesos.

5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos.

6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos.

7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the circumstances
enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed
5 pesos. If such value exceeds said amount, the provision of any of the five preceding subdivisions shall
be made applicable.

8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the thing stolen
is not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty, or the difficulty
of earning a livelihood for the support of himself or his family.

In a case wherein the value of the thing stolen is ₱6,000.00, the above-provision states that the penalty is
prision correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months).
Applying the proposal, if the value of the thing stolen is ₱6,000.00, the penalty is imprisonment of arresto
mayor in its medium period to prision correccional minimum period (2 months and 1 day to 2 years and 4
months). It would seem that under the present law, the penalty imposed is almost the same as the penalty
proposed. In fact, after the application of the Indeterminate Sentence Law under the existing law, the
minimum penalty is still lowered by one degree; hence, the minimum penalty is arresto mayor in its medium
period to maximum period (2 months and 1 day to 6 months), making the offender qualified for pardon or
parole after serving the said minimum period and may even apply for probation. Moreover, under the
proposal, the minimum penalty after applying the Indeterminate Sentence Law is arresto menor in its
maximum period to arresto mayor in its minimum period (21 days to 2 months) is not too far from the
minimum period under the existing law. Thus, it would seem that the present penalty imposed under the
law is not at all excessive. The same is also true in the crime of Estafa. 23

Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in the crime of Theft
and the damage caused in the crime of Estafa, the gap between the minimum and the maximum amounts,
which is the basis of determining the proper penalty to be imposed, would be too wide and the penalty
imposable would no longer be commensurate to the act committed and the value of the thing stolen or the
damage caused:

I. Article 309, or the penalties for the crime of Theft, the value would be modified but the penalties are not
changed:

1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to ₱2,200,000.00, punished by prision mayor

minimum to prision mayor medium (6 years and 1 day to 10 years).

2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punished by prision correccional

medium and to prision correccional maximum (2 years, 4 months and 1 day to 6 years). 24
3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by prision correccional
minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months).

4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00, punishable by arresto mayor medium to prision
correccional minimum (2 months and 1 day to 2 years and 4 months).

5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable by arresto mayor (1 month and 1 day to
6 months).

6. ₱5.00 will become ₱500.00, punishable by arresto mayor minimum to arresto mayor medium.

x x x x.

II. Article 315, or the penalties for the crime of Estafa, the value would also be modified but the penalties
are not changed, as follows:

1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to ₱2,200,000.00, punishable by prision

correccional maximum to prision mayor minimum (4 years, 2 months and 1 day to 8 years).25

2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punishable by prision

correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months). 26

3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by arresto mayor maximum
to prision correccional minimum (4 months and 1 day to 2 years and 4 months).

4th. ₱200.00 will become ₱20,000.00, punishable by arresto mayor maximum (4 months and 1 day to 6
months).

An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is that the
incremental penalty provided under Article 315 of the RPC violates the Equal Protection Clause.

The equal protection clause requires equality among equals, which is determined according to a valid
classification. The test developed by jurisprudence here and yonder is that of reasonableness, 27 which has
four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.28

According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on substantial distinctions as
₱10,000.00 may have been substantial in the past, but it is not so today, which violates the first requisite;
the IPR was devised so that those who commit estafa involving higher amounts would receive heavier
penalties; however, this is no longer achieved, because a person who steals ₱142,000.00 would receive
the same penalty as someone who steals hundreds of millions, which violates the second requisite; and,
the IPR violates requisite no. 3, considering that the IPR is limited to existing conditions at the time the law
was promulgated, conditions that no longer exist today.

Assuming that the Court submits to the argument of Dean Diokno and declares the incremental penalty in
Article 315 unconstitutional for violating the equal protection clause, what then is the penalty that should be
applied in case the amount of the thing subject matter of the crime exceeds ₱22,000.00? It seems that the
proposition poses more questions than answers, which leads us even more to conclude that the appropriate
remedy is to refer these matters to Congress for them to exercise their inherent power to legislate laws.
Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional, the remedy is to
go to Congress. Thus:

xxxx

JUSTICE PERALTA:

Now, your position is to declare that the incremental penalty should be struck down as unconstitutional
because it is absurd.

DEAN DIOKNO:

Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.

JUSTICE PERALTA:

Then what will be the penalty that we are going to impose if the amount is more than Twenty-Two Thousand
(₱22,000.00) Pesos.

DEAN DIOKNO:

Well, that would be for Congress to ... if this Court will declare the incremental penalty rule unconstitutional,
then that would ... the void should be filled by Congress.

JUSTICE PERALTA:

But in your presentation, you were fixing the amount at One Hundred Thousand (₱100,000.00) Pesos ...

DEAN DIOKNO:

Well, my presen ... (interrupted)

JUSTICE PERALTA:

For every One Hundred Thousand (₱100,000.00) Pesos in excess of Twenty-Two Thousand (₱22,000.00)
Pesos you were suggesting an additional penalty of one (1) year, did I get you right?

DEAN DIOKNO:

Yes, Your Honor, that is, if the court will take the route of statutory interpretation.

JUSTICE PERALTA:

Ah ...

DEAN DIOKNO:

If the Court will say that they can go beyond the literal wording of the law...

JUSTICE PERALTA:

But if we de ... (interrupted)

DEAN DIOKNO:

....then....

JUSTICE PERALTA:

Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court cannot fix the amount ...

DEAN DIOKNO:
No, Your Honor.

JUSTICE PERALTA:

... as the equivalent of one, as an incremental penalty in excess of Twenty-Two Thousand (₱22,000.00)
Pesos.

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

The Court cannot do that.

DEAN DIOKNO:

Could not be.

JUSTICE PERALTA:

The only remedy is to go to Congress...

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

... and determine the value or the amount.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-Two Thousand
(₱22,000.00) Pesos.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos.

Thank you, Dean.

DEAN DIOKNO:

Thank you.

x x x x29

Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and unusual
punishment. Citing Solem v. Helm,30 Dean Diokno avers that the United States Federal Supreme Court has
expanded the application of a similar Constitutional provision prohibiting cruel and unusual punishment, to
the duration of the penalty, and not just its form. The court therein ruled that three things must be done to
decide whether a sentence is proportional to a specific crime, viz.; (1) Compare the nature and gravity of
the offense, and the harshness of the penalty; (2) Compare the sentences imposed on other criminals in
the same jurisdiction, i.e., whether more serious crimes are subject to the same penalty or to less serious
penalties; and (3) Compare the sentences imposed for commission of the same crime in other jurisdictions.

However, the case of Solem v. Helm cannot be applied in the present case, because in Solem what
respondent therein deemed cruel was the penalty imposed by the state court of South Dakota after it took
into account the latter’s recidivist statute and not the original penalty for uttering a "no account" check.
Normally, the maximum punishment for the crime would have been five years imprisonment and a
$5,000.00 fine. Nonetheless, respondent was sentenced to life imprisonment without the possibility of
parole under South Dakota’s recidivist statute because of his six prior felony convictions. Surely, the factual
antecedents of Solem are different from the present controversy.

With respect to the crime of Qualified Theft, however, it is true that the imposable penalty for the offense is
high. Nevertheless, the rationale for the imposition of a higher penalty against a domestic servant is the
fact that in the commission of the crime, the helper will essentially gravely abuse the trust and confidence
reposed upon her by her employer. After accepting and allowing the helper to be a member of the
household, thus entrusting upon such person the protection and safekeeping of the employer’s loved ones
and properties, a subsequent betrayal of that trust is so repulsive as to warrant the necessity of imposing a
higher penalty to deter the commission of such wrongful acts.

There are other crimes where the penalty of fine and/or imprisonment are dependent on the subject matter
of the crime and which, by adopting the proposal, may create serious implications. For example, in the
crime of Malversation, the penalty imposed depends on the amount of the money malversed by the public
official, thus:

Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public officer who,
by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same
or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other
person to take such public funds, or property, wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than
two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the
amount involved is more than six thousand pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount involved is more
than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter,
the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification
and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put
such missing funds or property to personal use.

The above-provisions contemplate a situation wherein the Government loses money due to the unlawful
acts of the offender. Thus, following the proposal, if the amount malversed is ₱200.00 (under the existing
law), the amount now becomes ₱20,000.00 and the penalty is prision correccional in its medium and
maximum periods (2 years 4 months and 1 day to 6 years). The penalty may not be commensurate to the
act of embezzlement of ₱20,000.00 compared to the acts committed by public officials punishable by a
special law, i.e., Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act, specifically Section 3,31
wherein the injury caused to the government is not generally defined by any monetary amount, the penalty
(6 years and 1 month to 15 years)32 under the Anti-Graft Law will now become higher. This should not be
the case, because in the crime of malversation, the public official takes advantage of his public position to
embezzle the fund or property of the government entrusted to him.

The said inequity is also apparent in the crime of Robbery with force upon things (inhabited or uninhabited)
where the value of the thing unlawfully taken and the act of unlawful entry are the bases of the penalty
imposable, and also, in Malicious Mischief, where the penalty of imprisonment or fine is dependent on the
cost of the damage caused.

In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the thing unlawfully
taken, as proposed in the ponencia, the sole basis of the penalty will now be the value of the thing unlawfully
taken and no longer the element of force employed in entering the premises. It may likewise cause an
inequity between the crime of Qualified Trespass to Dwelling under Article 280, and this kind of robbery
because the former is punishable by prision correccional in its medium and maximum periods (2 years, 4
months and 1 day to 6 years) and a fine not exceeding ₱1,000.00 (₱100,000.00 now if the ratio is 1:100)
where entrance to the premises is with violence or intimidation, which is the main justification of the penalty.
Whereas in the crime of Robbery with force upon things, it is punished with a penalty of prision mayor (6
years and 1 day to 12 years) if the intruder is unarmed without the penalty of Fine despite the fact that it is
not merely the illegal entry that is the basis of the penalty but likewise the unlawful taking.

Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can be imposed is
arresto mayor in its medium and maximum periods (2 months and 1 day to 6 months) if the value of the
damage caused exceeds ₱1,000.00, but under the proposal, the value of the damage will now become
₱100,000.00 (1:100), and still punishable by arresto mayor (1 month and 1 day to 6 months). And, if the
value of the damaged property does not exceed ₱200.00, the penalty is arresto menor or a fine of not less
than the value of the damage caused and not more than ₱200.00, if the amount involved does not exceed
₱200.00 or cannot be estimated. Under the proposal, ₱200.00 will now become ₱20,000.00, which simply
means that the fine of ₱200.00 under the existing law will now become ₱20,000.00. The amount of Fine
under this situation will now become excessive and afflictive in nature despite the fact that the offense is
categorized as a light felony penalized with a light penalty under Article 26 of the RPC.33 Unless we also
amend Article 26 of the RPC, there will be grave implications on the penalty of Fine, but changing the same
through Court decision, either expressly or impliedly, may not be legally and constitutionally feasible.

There are other crimes against property and swindling in the RPC that may also be affected by the proposal,
such as those that impose imprisonment and/or Fine as a penalty based on the value of the damage
caused, to wit: Article 311 (Theft of the property of the National Library and National Museum), Article 312
(Occupation of real property or usurpation of real rights in property), Article 313 (Altering boundaries or
landmarks), Article 316 (Other forms of swindling), Article 317 (Swindling a minor), Article 318 (Other
deceits), Article 328 (Special cases of malicious mischief) and Article 331 (Destroying or damaging statues,
public monuments or paintings). Other crimes that impose Fine as a penalty will also be affected, such as:
Article 213 (Frauds against the public treasury and similar offenses), Article 215 (Prohibited Transactions),

Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure of accountable officer
to render accounts), Article 219 (Failure of a responsible public officer to render accounts before leaving
the country).

In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes which are
punishable by special penal laws, such as Illegal Logging or Violation of Section 68 of Presidential Decree
No. 705, as amended.34 The law treats cutting, gathering, collecting and possessing timber or other forest
products without license as an offense as grave as and equivalent to the felony of qualified theft. 35 Under
the law, the offender shall be punished with the penalties imposed under Articles 309 and 310 36 of the
Revised Penal Code, which means that the penalty imposable for the offense is, again, based on the value
of the timber or forest products involved in the offense. Now, if we accept the said proposal in the crime of
Theft, will this particular crime of Illegal Logging be amended also in so far as the penalty is concerned
because the penalty is dependent on Articles 309 and 310 of the RPC? The answer is in the negative
because the soundness of this particular law is not in question.

With the numerous crimes defined and penalized under the Revised Penal Code and Special Laws, and
other related provisions of these laws affected by the proposal, a thorough study is needed to determine its
effectivity and necessity. There may be some provisions of the law that should be amended; nevertheless,
this Court is in no position to conclude as to the intentions of the framers of the Revised Penal Code by
merely making a study of the applicability of the penalties imposable in the present times. Such is not within
the competence of the Court but of the Legislature which is empowered to conduct public hearings on the
matter, consult legal luminaries and who, after due proceedings, can decide whether or not to amend or to
revise the questioned law or other laws, or even create a new legislation which will adopt to the times.

Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code. During the
oral arguments, counsel for the Senate informed the Court that at present, fifty-six (56) bills are now pending
in the Senate seeking to amend the Revised Penal Code,37 each one proposing much needed change and
updates to archaic laws that were promulgated decades ago when the political, socio-economic, and
cultural settings were far different from today’s conditions.

Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp
legislative powers by judicial legislation and that in the course of such application or construction, it should
not make or supervise legislation, or under the guise of interpretation, modify, revise, amend, distort,
remodel, or rewrite the law, or give the law a construction which is repugnant to its terms. 38 The Court
should apply the law in a manner that would give effect to their letter and spirit, especially when the law is
clear as to its intent and purpose. Succinctly put, the Court should shy away from encroaching upon the
primary function of a co-equal branch of the Government; otherwise, this would lead to an inexcusable
breach of the doctrine of separation of powers by means of judicial legislation.

Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it can be
increased by the Court when appropriate. Article 2206 of the Civil Code provides:

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three
thousand pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity
shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the
court, unless the deceased on account of permanent physical disability not caused by the defendant, had
no earning capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of Article 291, the recipient who
is not an heir called to the decedent's inheritance by the law of testate or intestate succession, may demand
support from the person causing the death, for a period not exceeding five years, the exact duration to be
fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand
moral damages for mental anguish by reason of the death of the deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or
compensation to the victim for the damage or infraction that was done to the latter by the accused, which
in a sense only covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a person dies,
in addition to the penalty of imprisonment imposed to the offender, the accused is also ordered to pay the
victim a sum of money as restitution. Clearly, this award of civil indemnity due to the death of the victim
could not be contemplated as akin to the value of a thing that is unlawfully taken which is the basis in the
imposition of the proper penalty in certain crimes. Thus, the reasoning in increasing the value of civil
indemnity awarded in some offense cannot be the same reasoning that would sustain the adoption of the
suggested ratio. Also, it is apparent from Article 2206 that the law only imposes a minimum amount for
awards of civil indemnity, which is ₱3,000.00. The law did not provide for a ceiling. Thus, although the
minimum amount for the award cannot be changed, increasing the amount awarded as civil indemnity can
be validly modified and increased when the present circumstance warrants it. Corollarily, moral damages
under Article 222039 of the Civil Code also does not fix the amount of damages that can be awarded. It is
discretionary upon the court, depending on the mental anguish or the suffering of the private offended party.
The amount of moral damages can, in relation to civil indemnity, be adjusted so long as it does not exceed
the award of civil indemnity.

In addition, some may view the penalty provided by law for the offense committed as tantamount to cruel
punishment. However, all penalties are generally harsh, being punitive in nature. Whether or not they are
excessive or amount to cruel punishment is a matter that should be left to lawmakers. It is the prerogative
of the courts to apply the law, especially when they are clear and not subject to any other interpretation
than that which is plainly written.

Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is that the incremental
penalty provision should be declared unconstitutional and that the courts should only impose the penalty
corresponding to the amount of ₱22,000.00, regardless if the actual amount involved exceeds ₱22,000.00.
As suggested, however, from now until the law is properly amended by Congress, all crimes of Estafa will
no longer be punished by the appropriate penalty. A conundrum in the regular course of criminal justice
would occur when every accused convicted of the crime of estafa will be meted penalties different from the
proper penalty that should be imposed. Such drastic twist in the application of the law has no legal basis
and directly runs counter to what the law provides.

It should be noted that the death penalty was reintroduced in the dispensation of criminal justice by the
Ramos Administration by virtue of Republic Act No. 765940 in December 1993. The said law has been
questioned before this Court. There is, arguably, no punishment more cruel than that of death. Yet still,
from the time the death penalty was re-imposed until its lifting in June 2006 by Republic Act No. 9346,41 the
Court did not impede the imposition of the death penalty on the ground that it is a "cruel punishment" within
the purview of Section 19 (1),42 Article III of the Constitution. Ultimately, it was through an act of Congress
suspending the imposition of the death penalty that led to its non-imposition and not via the intervention of
the Court.

Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the provision of the
law from which the proper penalty emanates unconstitutional in the present action. Not only is it violative of
due process, considering that the State and the concerned parties were not given the opportunity to
comment on the subject matter, it is settled that the constitutionality of a statute cannot be attacked
collaterally because constitutionality issues must be pleaded directly and not collaterally,43 more so in the
present controversy wherein the issues never touched upon the constitutionality of any of the provisions of
the Revised Penal Code.

Besides, it has long been held that the prohibition of cruel and unusual punishments is generally aimed at
the form or character of the punishment rather than its severity in respect of duration or amount, and applies
to punishments which public sentiment has regarded as cruel or obsolete, for instance, those inflicted at
the whipping post, or in the pillory, burning at the stake, breaking on the wheel, disemboweling, and the
like. Fine and imprisonment would not thus be within the prohibition.44

It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious
to the Constitution. The fact that the punishment authorized by the statute is severe does not make it cruel
and unusual. Expressed in other terms, it has been held that to come under the ban, the punishment must
be "flagrantly and plainly oppressive," "wholly disproportionate to the nature of the offense as to shock the
moral sense of the community."45
Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to our modern
time.

The solution to the present controversy could not be solved by merely adjusting the questioned monetary
values to the present value of money based only on the current inflation rate. There are other factors and
variables that need to be taken into consideration, researched, and deliberated upon before the said values
could be accurately and properly adjusted. The effects on the society, the injured party, the accused, its
socio-economic impact, and the likes must be painstakingly evaluated and weighed upon in order to arrive
at a wholistic change that all of us believe should be made to our existing law. Dejectedly, the Court is ill-
equipped, has no resources, and lacks sufficient personnel to conduct public hearings and sponsor studies
and surveys to validly effect these changes in our Revised Penal Code. This function clearly and
appropriately belongs to Congress. Even Professor Tadiar concedes to this conclusion, to wit:

xxxx

JUSTICE PERALTA:

Yeah, Just one question. You are suggesting that in order to determine the value of Peso you have to take
into consideration several factors.

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

Per capita income.

PROFESSOR TADIAR:

Per capita income.

JUSTICE PERALTA:

Consumer price index.

PROFESSOR TADIAR:

Yeah.

JUSTICE PERALTA:

Inflation ...

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

... and so on. Is the Supreme Court equipped to determine those factors?

PROFESSOR TADIAR:

There are many ways by which the value of the Philippine Peso can be determined utilizing all of those
economic terms.

JUSTICE PERALTA:

Yeah, but ...

PROFESSOR TADIAR:

And I don’t think it is within the power of the Supreme Court to pass upon and peg the value to One Hundred
(₱100.00) Pesos to ...

JUSTICE PERALTA:

Yeah.

PROFESSOR TADIAR:

... One (₱1.00.00) Peso in 1930.

JUSTICE PERALTA:

That is legislative in nature.

PROFESSOR TADIAR:

That is my position that the Supreme Court ...

JUSTICE PERALTA:

Yeah, okay.

PROFESSOR TADIAR:

... has no power to utilize the power of judicial review to in order to adjust, to make the adjustment that is a
power that belongs to the legislature.

JUSTICE PERALTA:

Thank you, Professor.

PROFESSOR TADIAR:

Thank you.46

Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view that the role of
the Court is not merely to dispense justice, but also the active duty to prevent injustice. Thus, in order to
prevent injustice in the present controversy, the Court should not impose an obsolete penalty pegged eighty
three years ago, but consider the proposed ratio of 1:100 as simply compensating for inflation. Furthermore,
the Court has in the past taken into consideration "changed conditions" or "significant changes in
circumstances" in its decisions.

Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the substance of a
statute. The issue is no different from the Court’s adjustment of indemnity in crimes against persons, which
the Court had previously adjusted in light of current times, like in the case of People v. Pantoja. 47 Besides,
Article 10 of the Civil Code mandates a presumption that the lawmaking body intended right and justice to
prevail.

With due respect to the opinions and proposals advanced by the Chief Justice and my Colleagues, all the
proposals ultimately lead to prohibited judicial legislation. Short of being repetitious and as extensively
discussed above, it is truly beyond the powers of the Court to legislate laws, such immense power belongs
to Congress and the Court should refrain from crossing this clear-cut divide. With regard to civil indemnity,
as elucidated before, this refers to civil liability which is awarded to the offended party as a kind of monetary
restitution. It is truly based on the value of money. The same cannot be said on penalties because, as
earlier stated, penalties are not only based on the value of money, but on several other factors. Further,
since the law is silent as to the maximum amount that can be awarded and only pegged the minimum sum,
increasing the amount granted as civil indemnity is not proscribed. Thus, it can be adjusted in light of current
conditions.

Now, with regard to the penalty imposed in the present case, the CA modified the ruling of the RTC. The
RTC imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional in its
medium period, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal in its
minimum period, as maximum. However, the CA imposed the indeterminate penalty of four (4) years and
two (2) months of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum, plus
one (1) year for each additional ₱10,000.00, or a total of seven (7) years.

In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v. People 48 is highly
instructive, thus:

With respect to the imposable penalty, Article 315 of the Revised Penal Code provides:

ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the means mentioned
hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the
amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such amount exceeds the
latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year
for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty
years. In such case, and in connection with the accessory penalties which may be imposed and for the
purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be.

The penalty prescribed by Article 315 is composed of only two, not three, periods, in which case, Article 65
of the same Code requires the division of the time included in the penalty into three equal portions of time
included in the penalty prescribed, forming one period of each of the three portions. Applying the latter
provisions, the maximum, medium and minimum periods of the penalty prescribed are:

Maximum - 6 years, 8 months, 21 days to 8 years

Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days

Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days 49

To compute the maximum period of the prescribed penalty, prisión correccional maximum to prisión mayor
minimum should be divided into three equal portions of time each of which portion shall be deemed to form
one period in accordance with Article 6550 of the RPC.51 In the present case, the amount involved is
₱98,000.00, which exceeds ₱22,000.00, thus, the maximum penalty imposable should be within the
maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor. Article 315 also states that
a period of one year shall be added to the penalty for every additional ₱10,000.00 defrauded in excess of
₱22,000.00, but in no case shall the total penalty which may be imposed exceed 20 years.

Considering that the amount of ₱98,000.00 is ₱76,000.00 more than the ₱22,000.00 ceiling set by law,
then, adding one year for each additional ₱10,000.00, the maximum period of 6 years, 8 months and 21
days to 8 years of prision mayor minimum would be increased by 7 years. Taking the maximum of the
prescribed penalty, which is 8 years, plus an additional 7 years, the maximum of the indeterminate penalty
is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa charge against
petitioner is prision correccional maximum to prision mayor minimum, the penalty next lower would then be
prision correccional in its minimum and medium periods.
Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months and 1 day to 4
years and 2 months.

One final note, the Court should give Congress a chance to perform its primordial duty of lawmaking. The
Court should not pre-empt Congress and usurp its inherent powers of making and enacting laws. While it
may be the most expeditious approach, a short cut by judicial fiat is a dangerous proposition, lest the Court
dare trespass on prohibited judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito Corpuz is
hereby DENIED. Consequently, the Decision dated March 22, 2007 and Resolution dated September 5,
2007 of the Court of Appeals, which affirmed with modification the Decision dated July 30, 2004 of the
Regional Trial Court, Branch 46, San Fernando City, finding petitioner guilty beyond reasonable doubt of
the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code, are
hereby AFFIRMED with MODIFICATION that the penalty imposed is the indeterminate penalty of
imprisonment ranging from THREE (3) YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision
correccional, as minimum, to FIFTEEN (15) YEARS of reclusion temporal as maximum.

Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished the President of
the Republic of the Philippines, through the Department of Justice.

Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the House of
Representatives.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

See Concurring and Dissenting Opinion

MARIA LOURDES P.A. SERENO
Chief Justice

See Dissenting Opinion

PRESBITERO J. VELASCO, JR.
ANTONIO T. CARPIO
Associate Justice
Associate Justice
See: Concurring Opinion
TERESITA J. LEONARDO-DE CASTRO
ARTURO D. BRION
Associate Justice
Associate Justice
I take no part due to prior action in the CA I join the Dissent of J. Abad
LUCAS P. BERSAMIN* MARIANO C. DEL CASTILLO
Associate Justice
Associate Justice
See Dissenting Opinion
MARTIN S. VILLARAMA, JR.
ROBERTO A. ABAD
Associate Justice
Associate Justice
JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA
Associate Justice Associate Justice
No Part
BVIENVENIDO L. REYES
ESTELA M. PERLAS-BERNABE*
Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision
were reached in consultation before the case was assigned to the writer of the opinion of the Court.

MARIA LOURDES P. A. SERENO

Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 102858 July 28, 1997

THE DIRECTOR OF LANDS, petitioner,

vs.
COURT OF APPEALS and TEODORO ABISTADO, substituted by MARGARITA, MARISSA, MARIBEL,
ARNOLD and MARY ANN, all surnamed ABISTO, respondents.

PANGANIBAN, J.:

Is newspaper publication of the notice of initial hearing in an original land registration case mandatory or
directory?

Statement of the Case

The Court of Appeals ruled that it was merely procedural and that the failure to cause such publication did
not deprive the trial court of its authority to grant the application. But the Solicitor General disagreed and
thus filed this petition to set aside the Decision1 promulgated on July 3, 1991 and the subsequent
Resolution2 promulgated on November 19, 1991 by Respondent Court of Appeals3 in CA-G.R. CV No.
23719. The dispositive portion of the challenged Decision reads: 4

WHEREFORE, premises considered, the judgment of dismissal appealed from is hereby set aside, and a
new one entered confirming the registration and title of applicant, Teodoro Abistado, Filipino, a resident of
Barangay 7, Poblacion Mamburao, Occidental Mindoro, now deceased and substituted by Margarita,
Marissa, Maribel, Arnold and Mary Ann, all surnamed Abistado, represented by their aunt, Miss Josefa
Abistado, Filipinos, residents of Poblacion Mamburao, Occidental Mindoro, to the parcel of land covered
under MSI (IV-A-8) 315-D located in Poblacion Mamburao, Occidental Mindoro.

The oppositions filed by the Republic of the Philippines and private oppositor are hereby dismissed for want
of evidence.

Upon the finality of this decision and payment of the corresponding taxes due on this land, let an order for
the issuance of a decree be issued.

The Facts

On December 8, 1986, Private Respondent Teodoro Abistado filed a petition for original registration of his
title over 648 square meters of land under Presidential Decree (PD) No. 1529. 5 The application was
docketed as Land Registration Case (LRC) No. 86 and assigned to Branch 44 of the Regional Trial Court
of Mamburao, Occidental Mindoro.6 However, during the pendency of his petition, applicant died. Hence,
his heirs — Margarita, Marissa, Maribel, Arnold and Mary Ann, all surnamed Abistado — represented by
their aunt Josefa Abistado, who was appointed their guardian ad litem, were substituted as applicants.

The land registration court in its decision dated June 13, 1989 dismissed the petition "for want of
jurisdiction." However, it found that the applicants through their predecessors-in-interest had been in open,
continuous, exclusive and peaceful possession of the subject land since 1938.
In dismissing the petition, the trial court reasoned:7

. . . However, the Court noted that applicants failed to comply with the provisions of Section 23 (1) of PD
1529, requiring the Applicants to publish the notice of Initial Hearing (Exh. "E") in a newspaper of general
circulation in the Philippines. Exhibit "E" was only published in the Official Gazette (Exhibits "F" and "G").
Consequently, the Court is of the well considered view that it has not legally acquired jurisdiction over the
instant application for want of compliance with the mandatory provision requiring publication of the notice
of initial hearing in a newspaper of general circulation.

The trial court also cited Ministry of Justice Opinion No. 48, Series of 1982, which in its pertinent portion
provides:8

It bears emphasis that the publication requirement under Section 23 [of PD 1529] has a two-fold purpose;
the first, which is mentioned in the provision of the aforequoted provision refers to publication in the Official
Gazette, and is jurisdictional; while the second, which is mentioned in the opening clause of the same
paragraph, refers to publication not only in the Official Gazette but also in a newspaper of general
circulation, and is procedural. Neither one nor the other is dispensable. As to the first, publication in the
Official Gazette is indispensably necessary because without it, the court would be powerless to assume
jurisdiction over a particular land registration case. As to the second, publication of the notice of initial
hearing also in a newspaper of general circulation is indispensably necessary as a requirement of
procedural due process; otherwise, any decision that the court may promulgate in the case would be legally
infirm.

Unsatisfied, private respondents appealed to Respondent Court of Appeals which, as earlier explained, set
aside the decision of the trial court and ordered the registration of the title in the name of Teodoro Abistado.

The subsequent motion for reconsideration was denied in the challenged CA Resolution dared November
19, 1991.

The Director of Lands represented by the Solicitor General thus elevated this recourse to us. This Court
notes that the petitioner's counsel anchored his petition on Rule 65. This is an error. His remedy should be
based on Rule 45 because he is appealing a final disposition of the Court of Appeals. Hence, we shall treat
his petition as one for review under Rule 45, and not for certiorari under Rule 65.9

The Issue

Petitioner alleges that Respondent Court of Appeals committed "grave abuse of discretion"10 in holding —

. . . that publication of the petition for registration of title in LRC Case No. 86 need not be published in a
newspaper of general circulation, and in not dismissing LRC Case No. 86 for want of such publication.

Petitioner points out that under Section 23 of PD 1529, the notice of initial hearing shall be "published both
in the Official Gazette and in a newspaper of general circulation." According to petitioner, publication in the
Official Gazette is "necessary to confer jurisdiction upon the trial court, and . . . in . . . a newspaper of
general circulation to comply with the notice requirement of due process." 11

Private respondents, on the other hand, contend that failure to comply with the requirement of publication
in a newspaper of general circulation is a mere "procedural defect." They add that publication in the Official
Gazette is sufficient to confer jurisdiction.12

In reversing the decision of the trial court, Respondent Court of Appeals ruled:13

. . . although the requirement of publication in the Official Gazette and in a newspaper of general circulation
is couched in mandatory terms, it cannot be gainsaid that the law also mandates with equal force that
publication in the Official Gazette shall be sufficient to confer jurisdiction upon the court.
Further, Respondent Court found that the oppositors were afforded the opportunity "to explain matters fully
and present their side." Thus, it justified its disposition in this wise: 14

. . . We do not see how the lack of compliance with the required procedure prejudiced them in any way.
Moreover, the other requirements of: publication in the Official Gazette, personal notice by mailing, and
posting at the site and other conspicuous places, were complied with and these are sufficient to notify any
party who is minded to make any objection of the application for registration.

The Court's Ruling

We find for petitioner.

Newspaper Publication Mandatory

The pertinent part of Section 23 of Presidential Decree No. 1529 requiring publication of the notice of initial
hearing reads as follows:

Sec. 23. Notice of initial hearing, publication, etc. — The court shall, within five days from filing of the
application, issue an order setting the date and hour of the initial hearing which shall not be earlier than
forty-five days nor later than ninety days from the date of the order.

The public shall be given notice of initial hearing of the application for land registration by means of (1)
publication; (2) mailing; and (3) posting.

1. By publication. —

Upon receipt of the order of the court setting the time for initial hearing, the Commissioner of Land
Registration shall cause a notice of initial hearing to be published once in the Official Gazette and once in
a newspaper of general circulation in the Philippines: Provided, however, that the publication in the Official
Gazette shall be sufficient to confer jurisdiction upon the court. Said notice shall be addressed to all persons
appearing to have an interest in the land involved including the adjoining owners so far as known, and "to
all whom it may concern." Said notice shall also require all persons concerned to appear in court at a certain
date and time to show cause why the prayer of said application shall not be granted.

xxx xxx xxx

Admittedly, the above provision provides in clear and categorical terms that publication in the Official
Gazette suffices to confer jurisdiction upon the land registration court. However, the question boils down to
whether, absent any publication in a newspaper of general circulation, the land registration court can validly
confirm and register the title of private respondents.

We answer this query in the negative. This answer is impelled by the demands of statutory construction
and the due process rationale behind the publication requirement.

The law used the term "shall" in prescribing the work to be done by the Commissioner of Land Registration
upon the latter's receipt of the court order setting the time for initial hearing. The said word denotes an
imperative and thus indicates the mandatory character of a statute.15 While concededly such literal mandate
is not an absolute rule in statutory construction, as its import ultimately depends upon its context in the
entire provision, we hold that in the present case the term must be understood in its normal mandatory
meaning. In Republic vs. Marasigan,16 the Court through Mr. Justice Hilario G. Davide, Jr. held that Section
23 of PD 1529 requires notice of the initial hearing by means of (1) publication, (2) mailing and (3) posting,
all of which must be complied with. "If the intention of the law were otherwise, said section would not have
stressed in detail the requirements of mailing of notices to all persons named in the petition who, per Section
15 of the Decree, include owners of adjoining properties, and occupants of the land." Indeed, if mailing of
notices is essential, then by parity of reasoning, publication in a newspaper of general circulation is likewise
imperative since the law included such requirement in its detailed provision.
It should be noted further that land registration is a proceeding in rem. 17 Being in rem, such proceeding
requires constructive seizure of the land as against all persons, including the state, who have rights to or
interests in the property. An in rem proceeding is validated essentially through publication. This being so,
the process must strictly be complied with. Otherwise, persons who may be interested or whose rights may
be adversely affected would be barred from contesting an application which they had no knowledge of. As
has been ruled, a party as an owner seeking the inscription of realty in the land registration court must
prove by satisfactory and conclusive evidence not only his ownership thereof but the identity of the same,
for he is in the same situation as one who institutes an action for recovery of realty. 18 He must prove his
title against the whole world. This task, which rests upon the applicant, can best be achieved when all
persons concerned — nay, "the whole world" — who have rights to or interests in the subject property are
notified and effectively invited to come to court and show cause why the application should not be granted.
The elementary norms of due process require that before the claimed property is taken from concerned
parties and registered in the name of the applicant, said parties must be given notice and opportunity to
oppose.

It may be asked why publication in a newspaper of general circulation should be deemed mandatory when
the law already requires notice by publication in the Official Gazette as well as by mailing and posting, all
of which have already been complied with in the case at hand. The reason is due process and the reality
that the Official Gazette is not as widely read and circulated as newspapers and is oftentimes delayed in
its circulation, such that the notices published therein may not reach the interested parties on time, if at all.
Additionally, such parties may not be owners of neighboring properties, and may in fact not own any other
real estate. In sum, the all-encompassing in rem nature of land registration cases, the consequences of
default orders issued against the whole world and the objective of disseminating the notice in as wide a
manner as possible demand a mandatory construction of the requirements for publication, mailing and
posting.

Admittedly, there was failure to comply with the explicit publication requirement of the law. Private
respondents did not proffer any excuse; even if they had, it would not have mattered because the statute
itself allows no excuses. Ineludibly, this Court has no authority to dispense with such mandatory
requirement. The law is unambiguous and its rationale clear. Time and again, this Court has declared that
where the law speaks in clear and categorical language, there is no room for interpretation, vacillation or
equivocation; there is room only for application. 19 There is no alternative. Thus, the application for land
registration filed by private respondents must be dismissed without prejudice to reapplication in the future,
after all the legal requisites shall have been duly complied with.

WHEREFORE, the petition is GRANTED and the assailed Decision and Resolution are REVERSED and
SET ASIDE. The application of private respondent for land registration is DISMISSED without prejudice.
No costs.

SO ORDERED.

Davide, Jr., Melo and Francisco, JJ., concur.

Narvasa, C.J., is on leave.

 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 179334 July 1, 2013

SECRETARY OF THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS and DISTRICT

ENGINEER CELESTINO R. CONTRERAS, Petitioners,
vs.
SPOUSES HERACLEO and RAMONA TECSON, Respondents.

DECISION

PERALTA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Court of Appeals
(CA) Decision1 dated July 31, 2007 in CA-G.R. CV No. 77997. The assailed decision affirmed with
modification the Regional Trial Court (RTC)2 Decision3 dated March 22, 2002 in Civil Case No. 208-M-95.

The case stemmed from the following factual and procedural antecedents:

Respondent spouses Heracleo and Ramona Tecson (respondents) are co-owners of a parcel of land with
an area of 7,268 square meters located in San Pablo, Malolos, Bulacan and covered by Transfer Certificate
of Title (TCT) No. T-430064 of the Register of Deeds of Bulacan. Said parcel of land was among the
properties taken by the government sometime in 1940 without the owners’ consent and without the
necessary expropriation proceedings and used for the construction of the MacArthur Highway. 5

In a letter6 dated December 15, 1994, respondents demanded the payment of the fair market value of the
subject parcel of land. Petitioner Celestino R. Contreras (petitioner Contreras), then District Engineer of the
First Bulacan Engineering District of petitioner Department of Public Works and Highways (DPWH), offered
to pay the subject land at the rate of ₱0.70 per square meter per Resolution of the Provincial Appraisal
Committee (PAC) of Bulacan.7 Unsatisfied with the offer, respondents demanded for the return of their
property or the payment of compensation at the current fair market value.8

As their demand remained unheeded, respondents filed a Complaint 9 for recovery of possession with
damages against petitioners, praying that they be restored to the possession of the subject parcel of land
and that they be paid attorney’s fees.10 Respondents claimed that the subject parcel of land was assessed
at ₱2,543,800.00.11

Instead of filing their Answer, petitioners moved for the dismissal of the complaint on the following grounds:
(1) that the suit is against the State which may not be sued without its consent; (2) that the case has already
prescribed; (3) that respondents have no cause of action for failure to exhaust administrative remedies; and
(4) if respondents are entitled to compensation, they should be paid only the value of the property in 1940
or 1941.12

On June 28, 1995, the RTC issued an Order13 granting respondents’ motion to dismiss based on the
doctrine of state immunity from suit. As respondents’ claim includes the recovery of damages, there is no
doubt that the suit is against the State for which prior waiver of immunity is required. When elevated to the
CA,14 the appellate court did not agree with the RTC and found instead that the doctrine of state immunity
from suit is not applicable, because the recovery of compensation is the only relief available to the
landowner. To deny such relief would undeniably cause injustice to the landowner. Besides, petitioner
Contreras, in fact, had earlier offered the payment of compensation although at a lower rate.Thus, the CA
reversed and set aside the dismissal of the complaint and, consequently, remanded the case to the trial
court for the purpose of determining the just compensation to which respondents are entitled to recover
from the government.15 With the finality of the aforesaid decision, trial proceeded in the RTC.

The Branch Clerk of Court was initially appointed as the Commissioner and designated as the Chairman of
the Committee that would determine just compensation, 16 but the case was later referred to the PAC for
the submission of a recommendation report on the value of the subject property.17 In PAC Resolution No.
99-007,18 the PAC recommended the amount of ₱1,500.00 per square meter as the just compensation for
the subject property.

On March 22, 2002, the RTC rendered a Decision,19 the dispositive portion of which reads:

WHEREFORE, premises considered, the Department of Public Works and Highways or its duly assigned
agencies are hereby directed to pay said Complainants/Appellants the amount of One Thousand Five
Hundred Pesos (₱1,500.00) per square meter for the lot subject matter of this case in accordance with the
Resolution of the Provincial Appraisal Committee dated December 19, 2001.

SO ORDERED.20

On appeal, the CA affirmed the above decision with the modification that the just compensation stated
above should earn interest of six percent (6%) per annum computed from the filing of the action on March
17, 1995 until full payment.21

In its appeal before the CA, petitioners raised the issues of prescription and laches, which the CA brushed
aside on two grounds: first, that the issue had already been raised by petitioners when the case was
elevated before the CA in CA-G.R. CV No. 51454. Although it was not squarely ruled upon by the appellate
court as it did not find any reason to delve further on such issues, petitioners did not assail said decision
barring them now from raising exactly the same issues; and second, the issues proper for resolution had
been laid down in the pre-trial order which did not include the issues of prescription and laches. Thus, the
same can no longer be further considered. As to the propriety of the property’s valuation as determined by
the PAC and adopted by the RTC, while recognizing the rule that the just compensation should be the
reasonable value at the time of taking which is 1940, the CA found it necessary to deviate from the general
rule. It opined that it would be obviously unjust and inequitable if respondents would be compensated based
on the value of the property in 1940 which is ₱0.70 per sq m, but the compensation would be paid only
today. Thus, the appellate court found it just to award compensation based on the value of the property at
the time of payment. It, therefore, adopted the RTC’s determination of just compensation of ₱1,500.00 per
sq m as recommended by the PAC. The CA further ordered the payment of interest at the rate of six percent
(6%) per annum reckoned from the time of taking, which is the filing of the complaint on March 17, 1995.

Aggrieved, petitioners come before the Court assailing the CA decision based on the following grounds:

I.

THE COURT OF APPEALS GRAVELY ERRED IN GRANTING JUST COMPENSATION TO

RESPONDENTS CONSIDERING THE HIGHLY DUBIOUS AND QUESTIONABLE CIRCUMSTANCES OF
THEIR ALLEGED OWNERSHIP OF THE SUBJECT PROPERTY.

II.

THE COURT OF APPEALS GRAVELY ERRED IN AWARDING JUST COMPENSATION TO

RESPONDENTS BECAUSE THEIR COMPLAINT FOR RECOVERY OF POSSESSION AND DAMAGES
IS ALREADY BARRED BY PRESCRIPTION AND LACHES.

III.
THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE TRIAL COURT’S DECISION
ORDERING THE PAYMENT OF JUST COMPENSATION BASED ON THE CURRENT MARKET VALUE
OF THE ALLEGED PROPERTY OF RESPONDENTS.22

Petitioners insist that the action is barred by prescription having been filed fifty-four (54) years after the
accrual of the action in 1940. They explain that the court can motu proprio dismiss the complaint if it shows
on its face that the action had already prescribed. Petitioners likewise aver that respondents slept on their
rights for more than fifty years; hence, they are guilty of laches. Lastly, petitioners claim that the just
compensation should be based on the value of the property at the time of taking in 1940 and not at the time
of payment.23

The petition is partly meritorious.

The instant case stemmed from an action for recovery of possession with damages filed by respondents
against petitioners. It, however, revolves around the taking of the subject lot by petitioners for the
construction of the MacArthur Highway. There is taking when the expropriator enters private property not
only for a momentary period but for a permanent duration, or for the purpose of devoting the property to
public use in such a manner as to oust the owner and deprive him of all beneficial enjoyment thereof. 24

It is undisputed that the subject property was taken by petitioners without the benefit of expropriation
proceedings for the construction of the MacArthur Highway. After the lapse of more than fifty years, the
property owners sought recovery of the possession of their property. Is the action barred by prescription or
laches? If not, are the property owners entitled to recover possession or just compensation?

As aptly noted by the CA, the issues of prescription and laches are not proper issues for resolution as they
were not included in the pre-trial order. We quote with approval the CA’s ratiocination in this wise:

Procedurally, too, prescription and laches are no longer proper issues in this appeal. In the pre-trial order
issued on May 17, 2001, the RTC summarized the issues raised by the defendants, to wit: (a) whether or
not the plaintiffs were entitled to just compensation; (b) whether or not the valuation would be based on the
corresponding value at the time of the taking or at the time of the filing of the action; and (c) whether or not
the plaintiffs were entitled to damages. Nowhere did the pre-trial order indicate that prescription and laches
were to be considered in the adjudication of the RTC.25

To be sure, the pre-trial order explicitly defines and limits the issues to be tried and controls the subsequent
course of the action unless modified before trial to prevent manifest injustice.26

Even if we squarely deal with the issues of laches and prescription, the same must still fail. Laches is
principally a doctrine of equity which is applied to avoid recognizing a right when to do so would result in a
clearly inequitable situation or in an injustice.27 This doctrine finds no application in this case, since there is
nothing inequitable in giving due course to respondents’ claim. Both equity and the law direct that a property
owner should be compensated if his property is taken for public use. 28 Neither shall prescription bar
respondents’ claim following the long-standing rule "that where private property is taken by the Government
for public use without first acquiring title thereto either through expropriation or negotiated sale, the owner’s
action to recover the land or the value thereof does not prescribe." 29

When a property is taken by the government for public use, jurisprudence clearly provides for the remedies
available to a landowner. The owner may recover his property if its return is feasible or, if it is not, the
aggrieved owner may demand payment of just compensation for the land taken.30 For failure of respondents
to question the lack of expropriation proceedings for a long period of time, they are deemed to have waived
and are estopped from assailing the power of the government to expropriate or the public use for which the
power was exercised. What is left to respondents is the right of compensation. 31 The trial and appellate
courts found that respondents are entitled to compensation. The only issue left for determination is the
propriety of the amount awarded to respondents.
Just compensation is "the fair value of the property as between one who receives, and one who desires to
sell, x x x fixed at the time of the actual taking by the government." This rule holds true when the property
is taken before the filing of an expropriation suit, and even if it is the property owner who brings the action
for compensation.32

The issue in this case is not novel.

In Forfom Development Corporation [Forfom] v. Philippine National Railways [PNR], 33 PNR entered the
property of Forfom in January 1973 for public use, that is, for railroad tracks, facilities and appurtenances
for use of the Carmona Commuter Service without initiating expropriation proceedings.34 In 1990, Forfom
filed a complaint for recovery of possession of real property and/or damages against PNR. In Eusebio v.
Luis,35 respondent’s parcel of land was taken in 1980 by the City of Pasig and used as a municipal road
now known as A. Sandoval Avenue in Pasig City without the appropriate expropriation proceedings. In
1994, respondent demanded payment of the value of the property, but they could not agree on its valuation
prompting respondent to file a complaint for reconveyance and/or damages against the city government
and the mayor. In Manila International Airport Authority v. Rodriguez, 36 in the early 1970s, petitioner
implemented expansion programs for its runway necessitating the acquisition and occupation of some of
the properties surrounding its premises. As to respondent’s property, no expropriation proceedings were
initiated.1âwphi1 In 1997, respondent demanded the payment of the value of the property, but the demand
remained unheeded prompting him to institute a case for accion reivindicatoria with damages against
petitioner. In Republic v. Sarabia,37 sometime in 1956, the Air Transportation Office (ATO) took possession
and control of a portion of a lot situated in Aklan, registered in the name of respondent, without initiating
expropriation proceedings. Several structures were erected thereon including the control tower, the Kalibo
crash fire rescue station, the Kalibo airport terminal and the headquarters of the PNP Aviation Security
Group. In 1995, several stores and restaurants were constructed on the remaining portion of the lot. In
1997, respondent filed a complaint for recovery of possession with damages against the storeowners where
ATO intervened claiming that the storeowners were its lessees.

The Court in the above-mentioned cases was confronted with common factual circumstances where the
government took control and possession of the subject properties for public use without initiating
expropriation proceedings and without payment of just compensation, while the landowners failed for a long
period of time to question such government act and later instituted actions for recovery of possession with
damages. The Court thus determined the landowners’ right to the payment of just compensation and, more
importantly, the amount of just compensation. The Court has uniformly ruled that just compensation is the
value of the property at the time of taking that is controlling for purposes of compensation. In Forfom, the
payment of just compensation was reckoned from the time of taking in 1973; in Eusebio, the Court fixed
the just compensation by determining the value of the property at the time of taking in 1980; in MIAA, the
value of the lot at the time of taking in 1972 served as basis for the award of compensation to the owner;
and in Republic, the Court was convinced that the taking occurred in 1956 and was thus the basis in fixing
just compensation. As in said cases, just compensation due respondents in this case should, therefore, be
fixed not as of the time of payment but at the time of taking, that is, in 1940.

The reason for the rule has been clearly explained in Republic v. Lara, et al.,38 and repeatedly held by the
Court in recent cases, thus:

x x x "The value of the property should be fixed as of the date when it was taken and not the date of the
filing of the proceedings." For where property is taken ahead of the filing of the condemnation proceedings,
the value thereof may be enhanced by the public purpose for which it is taken; the entry by the plaintiff upon
the property may have depreciated its value thereby; or, there may have been a natural increase in the
value of the property from the time it is taken to the time the complaint is filed, due to general economic
conditions. The owner of private property should be compensated only for what he actually loses; it is not
intended that his compensation shall extend beyond his loss or injury. And what he loses is only the actual
value of his property at the time it is taken x x x.39
Both the RTC and the CA recognized that the fair market value of the subject property in 1940 was ₱0.70/sq
m.40 Hence, it should, therefore, be used in determining the amount due respondents instead of the higher
value which is ₱1,500.00. While disparity in the above amounts is obvious and may appear inequitable to
respondents as they would be receiving such outdated valuation after a very long period, it is equally true
that they too are remiss in guarding against the cruel effects of belated claim. The concept of just
compensation does not imply fairness to the property owner alone. Compensation must be just not only to
the property owner, but also to the public which ultimately bears the cost of expropriation. 41

Clearly, petitioners had been occupying the subject property for more than fifty years without the benefit of
expropriation proceedings. In taking respondents’ property without the benefit of expropriation proceedings
and without payment of just compensation, petitioners clearly acted in utter disregard of respondents’
proprietary rights which cannot be countenanced by the Court. 42 For said illegal taking, respondents are
entitled to adequate compensation in the form of actual or compensatory damages which in this case should
be the legal interest of six percent (6%) per annum on the value of the land at the time of taking in 1940
until full payment.43 This is based on the principle that interest runs as a matter of law and follows from the
right of the landowner to be placed in as good position as money can accomplish, as of the date of taking. 44

WHEREFORE, premises considered, the pet1t10n is PARTIALLY GRANTED. The Court of Appeals
Decision dated July 31, 2007 in CAG.R. CV No. 77997 is MODIFIED, in that the valuation of the subject
property owned by respondents shall be F0.70 instead of ₱1,500.00 per square meter, with interest at six
percent ( 6o/o) per annum from the date of taking in 1940 instead of March 17, 1995, until full payment.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

(Dissenting and Concurring Opinion)

PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson

ROBERTO A. ABAD JOSE CATRAL MENDOZA

Associate Justice Associate Justice
See separate opinion
MARVIC MARIO VICTOR F. LEONEN
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Acting Chairperson's Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-22301 August 30, 1967

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARIO MAPA Y MAPULONG, defendant-appellant.

Francisco P. Cabigao for defendant-appellant.

Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General F. R. Rosete and Solicitor O.
C. Hernandez for plaintiff-appellee.

FERNANDO, J.:

The sole question in this appeal from a judgment of conviction by the lower court is whether or not the
appointment to and holding of the position of a secret agent to the provincial governor would constitute a
sufficient defense to a prosecution for the crime of illegal possession of firearm and ammunition. We hold
that it does not.

The accused in this case was indicted for the above offense in an information dated August 14, 1962
reading as follows: "The undersized accuses MARIO MAPA Y MAPULONG of a violation of Section 878 in
connection with Section 2692 of the Revised Administrative Code, as amended by Commonwealth Act No.
56 and as further amended by Republic Act No. 4, committed as follows: That on or about the 13th day of
August, 1962, in the City of Manila, Philippines, the said accused did then and there wilfully and unlawfully
have in his possession and under his custody and control one home-made revolver (Paltik), Cal. 22, without
serial number, with six (6) rounds of ammunition, without first having secured the necessary license or
permit therefor from the corresponding authorities. Contrary to law."

When the case was called for hearing on September 3, 1963, the lower court at the outset asked the counsel
for the accused: "May counsel stipulate that the accused was found in possession of the gun involved in
this case, that he has neither a permit or license to possess the same and that we can submit the same on
a question of law whether or not an agent of the governor can hold a firearm without a permit issued by the
Philippine Constabulary." After counsel sought from the fiscal an assurance that he would not question the
authenticity of his exhibits, the understanding being that only a question of law would be submitted for
decision, he explicitly specified such question to be "whether or not a secret agent is not required to get a
license for his firearm."

Upon the lower court stating that the fiscal should examine the document so that he could pass on their
authenticity, the fiscal asked the following question: "Does the accused admit that this pistol cal. 22 revolver
with six rounds of ammunition mentioned in the information was found in his possession on August 13,
1962, in the City of Manila without first having secured the necessary license or permit thereof from the
corresponding authority?" The accused, now the appellant, answered categorically: "Yes, Your Honor."
Upon which, the lower court made a statement: "The accused admits, Yes, and his counsel Atty. Cabigao
also affirms that the accused admits."

Forthwith, the fiscal announced that he was "willing to submit the same for decision." Counsel for the
accused on his part presented four (4) exhibits consisting of his appointment "as secret agent of the Hon.
Feliciano Leviste," then Governor of Batangas, dated June 2, 1962; 1 another document likewise issued by
Gov. Leviste also addressed to the accused directing him to proceed to Manila, Pasay and Quezon City on
a confidential mission;2 the oath of office of the accused as such secret agent,3 a certificate dated March
11, 1963, to the effect that the accused "is a secret agent" of Gov. Leviste. 4 Counsel for the accused then
stated that with the presentation of the above exhibits he was "willing to submit the case on the question of
whether or not a secret agent duly appointed and qualified as such of the provincial governor is exempt
from the requirement of having a license of firearm." The exhibits were admitted and the parties were given
time to file their respective memoranda.1äwphï1.ñët

Thereafter on November 27, 1963, the lower court rendered a decision convicting the accused "of the crime
of illegal possession of firearms and sentenced to an indeterminate penalty of from one year and one day
to two years and to pay the costs. The firearm and ammunition confiscated from him are forfeited in favor
of the Government."

The only question being one of law, the appeal was taken to this Court. The decision must be affirmed.

The law is explicit that except as thereafter specifically allowed, "it shall be unlawful for any person to . . .
possess any firearm, detached parts of firearms or ammunition therefor, or any instrument or implement
used or intended to be used in the manufacture of firearms, parts of firearms, or ammunition."5 The next
section provides that "firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or
marines [of the Armed Forces of the Philippines], the Philippine Constabulary, guards in the employment
of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial treasurers,
municipal treasurers, municipal mayors, and guards of provincial prisoners and jails," are not covered "when
such firearms are in possession of such officials and public servants for use in the performance of their
official duties."6

The law cannot be any clearer. No provision is made for a secret agent. As such he is not exempt. Our task
is equally clear. The first and fundamental duty of courts is to apply the law. "Construction and interpretation
come only after it has been demonstrated that application is impossible or inadequate without them." 7 The
conviction of the accused must stand. It cannot be set aside.

Accused however would rely on People v. Macarandang,8 where a secret agent was acquitted on appeal
on the assumption that the appointment "of the accused as a secret agent to assist in the maintenance of
peace and order campaigns and detection of crimes, sufficiently put him within the category of a "peace
officer" equivalent even to a member of the municipal police expressly covered by section 879." Such
reliance is misplaced. It is not within the power of this Court to set aside the clear and explicit mandate of
a statutory provision. To the extent therefore that this decision conflicts with what was held in People v.
Macarandang, it no longer speaks with authority.

Wherefore, the judgment appealed from is affirmed.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and
Angeles, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 116719 January 18, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PATRICIO AMIGO alias "BEBOT", accused-appellant.

DECISION

MELO, J.:

Initially, Patricio Amigo was charged with frustrated murder in an Information reading as follows:

The undersigned accuses the above-named accused of the crime of FRUSTRATED MURDER, under Art.
248, in relation to Art. 5 of the Revised Penal Code, committed as follows:

That on or about December 29, 1989, in the City of Davao, Philippines, and within the jurisdiction of this
Honorable Court, the above-mentioned accused, armed with a knife, with treachery and evident
premeditation and with intent to kill wilfully, unlawfully and feloniously attacked, assaulted and stab with
said weapon one Benito Ng Suy, thereby inflicting injuries upon the latter, the following injuries, to wit:

MULTIPLE STAB WOUNDS-LEFT ARM, LEFT CHEST, ABDOMEN AND LEFT THIGH WITH
PENETRATION TO LEFT PLEURAL CAVITY, DIAPHRAGM STOMACH, DUODENUM,
PANCREAS AND MIDTRANVERSE COLON.

thus performing all the acts of execution which should have produced the crime of murder as a consequence
but nevertheless, did not produce it by reason of causes independent of his will, that is, because of the
timely and able medical assistance immediately rendered to the said Benito Ng Suy.

(p. 1, Rollo.)

to which he pleaded not guilty.

Subsequently, due to the death of the victim, an amended Information was filed charging now the crime of
murder, to wit:

That on or about December 29, 1989, in the City of Davao, Philippines, and within the jurisdiction of this
Honorable Court, the above-mentioned accused, armed with a knife, with treachery and evident
premeditation and with intent to kill wilfully, unlawfully and feloniously attacked, assaulted and stabbed with
said weapon one Benito Ng Suy, thereby inflicting upon the latter multiple wounds which caused his death
and the consequent loss and damage to the heirs of the victim.

(p. 3, Rollo.)

After trial on the merits, the court a quo rendered a decision, disposing:

WHEREFORE, finding the accused Patricio Amigo guilty beyond reasonable doubt of the crime of
MURDER punishable under Art. 248 of the Revised Penal Code, with no modifying circumstance present,
the accused is hereby sentenced to the penalty of reclusion perpetua, which is the medium period of the
penalty of reclusion temporal in its maximum to death and to pay the cost; to indemnify the offended party
the amount of P93,214.70 as actual damages and P50,000.00 as compensatory damages and P50,000.00
as moral damages.
 (p. 32, Rollo.)

Reversal thereof is now sought, with accused-appellant arguing that error was committed by the trial court
in imposing or meting out the penalty of reclusion perpetua against him despite the fact that Sec. 19 (1),
Article III of the 1987 Constitution was already in effect when the offense was committed.

The facts of the case, as briefly summarized in the brief submitted by the Office of the Solicitor General and
as borne out by the evidence, are as follows:

On December 29, 1989, at around 1:00 P.M., after having spent half-day at their store, located at No. 166-
A, Ramon Magsaysay Avenue, Davao City, Benito Ng Suy was driving their gray Ford Fiera back home,
situated at the back of Car Asia, Bajada, Davao City. With him during that time were his daughters, Jocelyn
Ng Suy and a younger one together with his two year old son, who were all seated at the front seat beside
him while a five year old boy was also seated at the back of the said vehicle. (TSN, April 29, 1991, pp. 3-5;
TSN, March 31, 1992)

On their way home and while traversing the National Highway of Bajada, Davao City, an orange Toyota
Tamaraw driven by one Virgilio Abogada, suddenly made a left turn in front of the Regional Hospital, Bajada,
Davao City, without noticing the Ford Fiera coming from the opposite direction. This Tamaraw was heading
for Sterlyn Kitchenette, which was situated at the comer of the said hospital. (TSN, April 29, 1991, p. 4;
TSN, March 31, 1992, pp. 3 and 13)

With Virgilio was Patricio Amigo alias Bebot, a vulcanizer at Lingling's vulcanizing shop owned and operated
by a certain Galadua. He was also seated at the right front seat beside Virgilio.

Due to the unexpected veer made by Virgilio, an accidental head on collision occurred between the Fiera
and the Tamaraw, causing a slight damaged to the right bumper of the latter. (TSN, March 31, 1992, p. 4)

Right after the collision, Benito immediately alighted from the driver's seat and confronted Virgilio Abogada
who also went down from his vehicle. (TSN, April 29, 1991, p. 5)

Benito, who was a big man with a loud voice told Virgilio, "You were not looking," to which Virgilio retorted,
I did not see you". (TSN, April 29, 1991, p. 16)

While the two drivers where having this verbal confrontation, Patricio who was merely a passenger of Virgilio
also alighted from the front seat of the Tamaraw and instantaneously approached Benito and advised the
latter to leave since it was merely a small and minor accident. (TSN, April 29, 1991, pp. 16-18)

A bit irritated with the actuation exhibit by Patricio, Benito rebuked the former and told him not to interfere,
since he had nothing to do with the accident. (ibid. p. 7)

Irked by the comment made by Benito, Patricio sarcastically asked; "You are Chinese, is it you?" With a
ready answer Benito said; "Yes, I am a Chinese and why?" Patricio in turn replied; So, you are a Chinese,
wait for a while," then left. (ibid. pp. 7 and 19)

Immediately thereafter, Benito ordered Jocelyn to call a policeman, but after a lapsed of about one minute,
Patricio returned and arrogantly approached Benito, asking the latter once again, "You are a Chinese, is it
not?" To this Benito calmly responded in the affirmative. (ibid. pp. 7, 19-20)

Upon hearing the response, Patricio mumbled "Ah, so you are a Chinese," and suddenly took a five inch
knife from his waist and simultaneously stabbed Benito hitting him twice on the chest. (Ibid. p. 20)

After being hit, Benito wounded and sensing that his life was in peril, tried to evade his assailant by pushing
Patricio away and run around the Tamaraw but Patricio wielding the same knife and not content with the
injuries he had already inflicted, still chased Benito and upon overtaking the latter embraced him and
thrusted his knife on the victim several times, the last of which hit Benito on the left side of his body. (ibid.
pp. 8, 10, 22)
It was at this juncture that Jocelyn who was still inside the Ford Fiera, pleading for mercy to spare her father
tried to get out of the vehicle but it was very unfortunate that she could not open its door. (Ibid. p. 10)

Knowing that Patricio was really determined to kill her father by refusing to heed her pleas, Joselyn shouted
for help, since there were already several people around witnessing that fatal incident, but to her
consternation nobody lifted a single finger to help them. (ibid. pp. 6, 10, 18, 21-22) Only after her father lay
seated on the floor of their Ford Fiera after being hit on the left side of his body that she was able to open
the door of the said vehicle. (Ibid. p 12)

After this precise moment, her younger sister, upon seeing their father bathing with his own blood,
embraced him, causing Patricio to cease from his ferocious assault and noticing the presence of several
people, he fled. (Ibid. p. 22)

Thereafter, an enraged Jocelyn chased him, but since the assailant ran faster than her, she was not able
to overtake him, thus, she instead decided to go back to where her father was and carried him inside the
Tamaraw who bumped them and consequently brought him to San Pedro Hospital where he was attended
to at the Emergency Room. (ibid. p 13)

While at the Emergency Room, Benito who was on a very critical condition, due to multiple (13) stabbed
wounds, was operated by Dr. Rolando Chiu. After the operation, he was subsequently brought to the ICU
and stayed there for three (3) weeks. (July 12, 1991, pp. 3 and 4)

In a last ditch effort to save his life, having only 10 to 20 percent survival, Benito was airlifted to Manila and
was directly confined at the Chinese General Hospital. After three (3) weeks of confinement, Benito expired.
CAUSE OF DEATH — SEPSIS (an overwhelming infection). This means that the infection has already
circulated in the blood all over the body. (ibid. pp. 6-7)

(pp. 59-65, Rollo.)

Accused-appellant contends that under the 1987 Constitution and prior to the promulgation of Republic Act
No. 7659, the death penalty had been abolished and hence, the penalty that should have been imposed
for the crime of murder committed by accused-appellant without the attendance of any modifying
circumstances, should be reclusion temporal in its medium period or 17 years, 4 months and 1 day, to 20
years of reclusion temporal.

Reasons out accused-appellant:

. . . Since the death penalty (or capital punishment) is not imposable when the stabbing and killing
happened, the computation of the penalty should be regarded from reclusion perpetua down and not from
death penalty. Indeed, the appropriate penalty is deducible from reclusion perpetua down to reclusion
temporal in its medium period. Hence, there being no modifying circumstances present (p. 5 Decision, ibid.),
the correct penalty should be in the medium period (Art. 64, par. 1, Revised Penal Code) which is 17 years,
4 months and 1 day to 20 years of reclusion temporal.

(p. 10, Appellant's Brief, ff. p. 50, Rollo.)

The question raised by accused-appellant was settled by this Court in People vs. Muñoz (170 SCRA 107
[1989]) thusly:

In People vs. Gavarra, Justice Pedro L. Yap declared for the Court that "in view of the abolition of the death
penalty under Section 19, Article III of the 1987 Constitution, the penalty that may be imposed for murder
is reclusion temporal in its maximum period to reclusion perpetua," thereby eliminating death as the original
maximum period. Later, without categorically saying so, the Court, through Justice Ameurfina A. Melencio-
Herrera in People vs. Masangkay and through Justice Andres R. Narvasa in People vs. Atencio, divided
the modified penalty into three new periods, the limits of which were specified by Justice Edgardo L. Paras
in People vs. Intino, as follows: the lower half of reclusion temporal maximum as the minimum; the upper
half of reclusion temporal maximum as the medium; and reclusion perpetua as the maximum.

The Court has reconsidered the above cases and, after extended discussion, come to the conclusion that
the doctrine announced therein does not reflect the intention of the framers as embodied in Article III,
Section 19(1) of the Constitution. This conclusion is not unanimous, to be sure. Indeed, there is much to be
said of the opposite view, which was in fact shared by many of those now voting for its reversal. The majority
of the Court, however, is of the belief that the original interpretation should be restored as the more
acceptable reading of the constitutional provision in question.

The advocates of the Masangkay ruling argue that the Constitution abolished the death penalty and thereby
limited the penalty for murder to the remaining periods, to wit, the minimum and the medium. These should
now be divided into three new periods in keeping with the three-grade scheme intended by the legislature.
Those who disagree feel that Article III, Section 19(1) merely prohibits the imposition of the death penalty
and has not, by reducing it to reclusion perpetua, also correspondingly reduced the remaining penalties.
These should be maintained intact.

A reading of Section 19(1) of Article III will readily show that here is really nothing therein which expressly
declares the abolition of the death penalty. The provision merely says that the death penalty shall not be
imposed unless for compelling reasons involving heinous crimes the Congress hereafter provides for it and,
if already imposed, shall be reduced to reclusion perpetua. The language, while rather awkward, is still
plain enough. And it is a settled rule of legal hermeneutics that if the language under consideration is plain,
it is neither necessary nor permissible to resort to extrinsic aids, like the records of the constitutional
convention, for its interpretation.

xxx xxx xxx

The question as we see it is not whether the framers intended to abolish the death penalty or merely to
prevent its imposition. Whatever the intention was, what we should determine is whether or not they also
meant to require a corresponding modification in the other periods as a result of the prohibition against the
death penalty.

It is definite that such a requirement, if there really was one, is not at all expressed in Article III, Section
19(1) of the Constitution or indicated therein by at least clear and unmistakable implication. It would have
been so easy, assuming such intention, to state it categorically and plainly, leaving no doubts as to its
meaning.

One searches in vain for such a statement, express or even implied. The writer of this opinion makes the
personal observation that this might be still another instance where the framers meant one thing and said
another or — strangely, considering their loquacity elsewhere — did not say enough.

The original ruling as applied in the Gavarra, Masangkay, Atencio and Intino cases represented the
unanimous thinking of the Court as it was then constituted. All but two members at that time still sit on the
Court today. If we have seen fit to take a second look at the doctrine on which we were all agreed before,
it is not because of a change in the composition of this body. It is virtually the same Court that is changing
its mind after reflecting on the question again in the light of new perspectives. And well it might, and can,
for the tenets it lays down are not immutable. The decisions of this Court are not petrified rules grown rigid
once pronounced but vital, growing things subject to change as all life is. While we are told that the trodden
path is best, this should not prevent us from opening a fresh trial or exploring the other side or testing a
new idea in a spirit of continuing inquiry.

Accordingly, with the hope that "as judges, (we) will be equal to (our) tasks," whatever that means, we
hereby reverse the current doctrine providing for three new periods for the penalty for murder as reduced
by the Constitution. Instead, we return to our original interpretation and hold that Article III, Section 19(1)
does not change the periods of the penalty prescribed by Article 248 of the Revised Penal Code except
only insofar as it prohibits the imposition of the death penalty and reduces it to reclusion perpetua. The
range of the medium and minimum penalties remains unchanged.

The Court realizes that this interpretation may lead to certain inequities that would not have arisen under
Article 248 of the Revised Penal Code before its modification. Thus, a person originally subject to the death
penalty and another who committed the murder without the attendance of any modifying circumstance will
now be both punishable with the same medium period although the former is concededly more guilty than
the latter. True enough. But that is the will not of this Court but of the Constitution. That is a question of
wisdom, not construction. Of some relevance perhaps is the parable in the Bible of the workman who was
paid the stipulated daily wage of one penny although he had worked longer than others hired later in the
day also paid the same amount. When he complained because he felt unjustly treated by the hoe jurisdiction
of the court over the person. An appearance may be madt agree with me for a penny?

The problem in any event is addressed not to this Court but to the Congress. Penalties are prescribed by
statute and are essentially and exclusively legislative. As judges, we can only interpret and apply them and
have no authority to modify them or revise their range as determined exclusively by the legislature. We
should not encroach on this prerogative of the lawmaking body.

Coming back to the case at bar, we find that there being no generic aggravating or mitigating circumstance
attending the commission of the offenses, the applicable sentence is the medium period of the penalty
prescribed by Article 248 of the Revised Penal Code which, conformably to the new doctrine here adopted
and announced, is still reclusion perpetua. This is the penalty we imposed on all the accused-appellants
for each of the three murders they have committed in conspiracy with the others. The award of civil
indemnity for the heirs of each of the victims is affirmed but the amount thereof is hereby increased to
P30,000.00 in line with the present policy.

(at pp. 120-125.)

The above ruling was reiterated in People vs. Parominog (203 SCRA 673 [1991]) and in People vs. De la
Cruz (216 SCRA 476 [1992]).

Finally, accused-appellant claims that the penalty of reclusion perpetua is too cruel and harsh a penalty
and pleads for sympathy. Courts are not the forum to plead for sympathy. The duty of courts is to apply the
law, disregarding their feeling of sympathy or pity for an accused. DURA LEX SED LEX. The remedy is
elsewhere — clemency from the executive or an amendment of the law by the legislative, but surely, at this
point, this Court can but apply the law.

WHEREFORE, the appealed decision is hereby AFFIRMED.

SO ORDERED.

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

 SUPREME COURT
Manila

EN BANC

G.R. No. 197676 February 4, 2014

REMMAN ENTERPRISES, INC. and CHAMBER OF REAL ESTATE AND BUILDERS'ASSOCIATION,

Petitioners,
vs.
PROFESSIONAL REGULATORY BOARD OF REAL ESTATE SERVICE and PROFESSIONAL
REGULATION COMMISSION, Respondents.

DECISION

VILLARAMA, JR., J.:

Assailed in this petition for review under Rule 45 is the Decision 1 dated July 12, 2011 of the Regional Trial
Court (RTC) of Manila, Branch 42 denying the petition to declare as unconstitutional Sections 28(a), 29 and
32 of Republic Act (R.A.) No. 9646.

R.A. No. 9646, otherwise known as the "Real Estate Service Act of the Philippines" was signed into law on
June 29, 2009 by President Gloria Macapagal-Arroyo. It aims to professionalize the real estate service
sector under a regulatory scheme of licensing, registration and supervision of real estate service
practitioners (real estate brokers, appraisers, assessors, consultants and salespersons) in the country. Prior
to its enactment, real estate service practitioners were under the supervision of the Department of Trade
and Industry (DTI) through the Bureau of Trade Regulation and Consumer Protection (BTRCP), in the
exercise of its consumer regulation functions. Such authority is now transferred to the Professional
Regulation Commission (PRC) through the Professional Regulatory Board of Real Estate Service
(PRBRES) created under the new law.

The implementing rules and regulations (IRR) of R.A. No. 9646 were promulgated on July 21, 2010 by the
PRC and PRBRES under Resolution No. 02, Series of 2010.

On December 7, 2010, herein petitioners Remman Enterprises, Inc. (REI) and the Chamber of Real Estate
and Builders’ Association (CREBA) instituted Civil Case No. 10-124776 in the Regional Trial Court of
Manila, Branch 42. Petitioners sought to declare as void and unconstitutional the following provisions of
R.A. No. 9646:

SEC. 28. Exemptions from the Acts Constituting the Practice of Real Estate Service. – The provisions of
this Act and its rules and regulations shall not apply to the following:

(a) Any person, natural or juridical, who shall directly perform by himself/herself the acts mentioned in
Section 3 hereof with reference to his/her or its own property, except real estate developers;

xxxx

SEC. 29. Prohibition Against the Unauthorized Practice of Real Estate Service. – No person shall practice
or offer to practice real estate service in the Philippines or offer himself/herself as real estate service
practitioner, or use the title, word, letter, figure or any sign tending to convey the impression that one is a
real estate service practitioner, or advertise or indicate in any manner whatsoever that one is qualified to
practice the profession, or be appointed as real property appraiser or assessor in any national government
entity or local government unit, unless he/she has satisfactorily passed the licensure examination given by
the Board, except as otherwise provided in this Act, a holder of a valid certificate of registration, and
professional identification card or a valid special/temporary permit duly issued to him/her by the Board and
the Commission, and in the case of real estate brokers and private appraisers, they have paid the required
bond as hereto provided.

xxxx

SEC. 32. Corporate Practice of the Real Estate Service. – (a) No partnership or corporation shall engage
in the business of real estate service unless it is duly registered with the Securities and Exchange
Commission (SEC), and the persons authorized to act for the partnership or corporation are all duly
registered and licensed real estate brokers, appraisers or consultants, as the case may be. The partnership
or corporation shall regularly submit a list of its real estate service practitioners to the Commission and to
the SEC as part of its annual reportorial requirements. There shall at least be one (1) licensed real estate
broker for every twenty (20) accredited salespersons.

(b) Divisions or departments of partnerships and corporations engaged in marketing or selling any real
estate development project in the regular course of business must be headed by full-time registered and
licensed real estate brokers.

(c) Branch offices of real estate brokers, appraisers or consultants must be manned by a duly licensed real
estate broker, appraiser or consultant as the case may be.

In case of resignation or termination from employment of a real estate service practitioner, the same shall
be reported by the employer to the Board within a period not to exceed fifteen (15) days from the date of
effectivity of the resignation or termination.

Subject to the provisions of the Labor Code, a corporation or partnership may hire the services of registered
and licensed real estate brokers, appraisers or consultants on commission basis to perform real estate
services and the latter shall be deemed independent contractors and not employees of such corporations.
(Emphasis and underscoring supplied.)

According to petitioners, the new law is constitutionally infirm because (1) it violates Article VI, Section 26
(1) of the 1987 Philippine Constitution which mandates that "[e]very bill passed by Congress shall embrace
only one subject which shall be expressed in the title thereof"; (2) it is in direct conflict with Executive Order
(E.O.) No. 648 which transferred the exclusive jurisdiction of the National Housing Authority (NHA) to
regulate the real estate trade and business to the Human Settlements Commission, now the Housing and
Land Use Regulatory Board (HLURB), which authority includes the issuance of license to sell of subdivision
owners and developers pursuant to Presidential Decree (P.D.) No. 957; (3) it violates the due process
clause as it impinges on the real estate developers’ most basic ownership rights, the right to use and
dispose property, which is enshrined in Article 428 of the Civil Code; and (4) Section 28(a) of R.A. No. 9646
violates the equal protection clause as no substantial distinctions exist between real estate developers and
the exempted group mentioned since both are property owners dealing with their own property.

Additionally, petitioners contended that the lofty goal of nurturing and developing a "corps of technically
competent, reasonable and respected professional real estate service practitioners" is not served by
curtailing the right of real estate developers to conduct their business of selling properties. On the contrary,
these restrictions would have disastrous effects on the real estate industry as the additional cost of
commissions would affect the pricing and affordability of real estate packages. When that happens,
petitioners claimed that the millions of jobs and billions in revenues that the real estate industry generates
for the government will be a thing of the past.

After a summary hearing, the trial court denied the prayer for issuance of a writ of preliminary injunction.

On July 12, 2011, the trial court rendered its Decision 2 denying the petition. The trial court held that the
assailed provisions are relevant to the title of the law as they are intended to regulate the practice of real
estate service in the country by ensuring that those who engage in it shall either be a licensed real estate
broker, or under the latter’s supervision. It likewise found no real discord between E.O. No. 648 and R.A.
No. 9646 as the latter does not render nugatory the license to sell granted by the HLURB to real estate
developers, which license would still subsist. The only difference is that by virtue of the new law, real estate
developers will now be compelled to hire the services of one licensed real estate broker for every twenty
salespersons to guide and supervise the coterie of salespersons under the employ of the real estate
developers.

On the issue of due process, the trial court said that the questioned provisions do not preclude property
owners from using, enjoying, or disposing of their own property because they can still develop and sell their
properties except that they have to secure the services of a licensed real estate broker who shall oversee
the actions of the unlicensed real estate practitioners under their employ. Since the subject provisions
merely prescribe the requirements for the regulation of the practice of real estate services, these are
consistent with a valid exercise of the State’s police power. The trial court further ruled that Section 28(a)
does not violate the equal protection clause because the exemption of real estate developers was anchored
on reasonable classification aimed at protecting the buying public from the rampant misrepresentations
often committed by unlicensed real estate practitioners, and to prevent unscrupulous and unethical real
estate practices from flourishing considering the large number of consumers in the regular course of
business compared to isolated sale transactions made by private individuals selling their own property.

Hence, this appeal on the following questions of law:

1. Whether there is a justiciable controversy for this Honorable Court to adjudicate;

2. Whether [R.A. No. 9646] is unconstitutional for violating the "one title-one subject" rule under Article VI,
Section 26 (1) of the Philippine Constitution;

3. Whether [R.A. No. 9646] is in conflict with PD 957, as amended by EO 648, with respect to the exclusive
jurisdiction of the HLURB to regulate real estate developers;

4. Whether Sections 28(a), 29, and 32 of [R.A. No. 9646], insofar as they affect the rights of real estate
developers, are unconstitutional for violating substantive due process; and

5. Whether Section 28(a), which treats real estate developers differently from other natural or juridical
persons who directly perform acts of real estate service with reference to their own property, is
unconstitutional for violating the equal protection clause.3

The Court’s Ruling

The petition has no merit.

Justiciable Controversy

The Constitution4 requires as a condition precedent for the exercise of judicial power the existence of an
actual controversy between litigants. An actual case or controversy involves a conflict of legal rights, an
assertion of opposite legal claims susceptible to judicial resolution. 5 The controversy must be justiciable –
definite and concrete – touching on the legal relations of parties having adverse legal interests, which may
be resolved by a court of law through the application of a law.6 In other words, the pleadings must show an
active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other; that is, it
must concern a real and not a merely theoretical question or issue. There ought to be an actual and
substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished
from an opinion advising what the law would be upon a hypothetical state of facts. 7 An actual case is ripe
for adjudication when the act being challenged has a direct adverse effect on the individual challenging it. 8

There is no question here that petitioners who are real estate developers are entities directly affected by
the prohibition on performing acts constituting practice of real estate service without first complying with the
registration and licensing requirements for brokers and agents under R.A. No. 9646. The possibility of
criminal sanctions for disobeying the mandate of the new law is likewise real. Asserting that the prohibition
violates their rights as property owners to dispose of their properties, petitioners challenged on
constitutional grounds the implementation of R.A. No. 9646 which the respondents defended as a valid
legislation pursuant to the State’s police power. The Court thus finds a justiciable controversy that calls for
immediate resolution.

No Violation of One-Title One-Subject Rule

Section 26(1), Article VI of the Constitution states:

SEC. 26 (1). Every bill passed by the Congress shall embrace only one subject which shall be expressed
in the title thereof.

In Fariñas v. The Executive Secretary,9 the Court explained the provision as follows:

The proscription is aimed against the evils of the so-called omnibus bills and log-rolling legislation as well
as surreptitious and/or unconsidered encroaches. The provision merely calls for all parts of an act relating
to its subject finding expression in its title.

To determine whether there has been compliance with the constitutional requirement that the subject of an
act shall be expressed in its title, the Court laid down the rule that –

Constitutional provisions relating to the subject matter and titles of statutes should not be so narrowly
construed as to cripple or impede the power of legislation. The requirement that the subject of an act shall
be expressed in its title should receive a reasonable and not a technical construction. It is sufficient if the
title be comprehensive enough reasonably to include the general object which a statute seeks to effect,
without expressing each and every end and means necessary or convenient for the accomplishing of that
object. Mere details need not be set forth. The title need not be an abstract or index of the Act. 10 (Emphasis
supplied.)

The Court has previously ruled that the one-subject requirement under the Constitution is satisfied if all the
parts of the statute are related, and are germane to the subject matter expressed in the title, or as long as
they are not inconsistent with or foreign to the general subject and title. 11 An act having a single general
subject, indicated in the title, may contain any number of provisions, no matter how diverse they may be,
so long as they are not inconsistent with or foreign to the general subject, and may be considered in
furtherance of such subject by providing for the method and means of carrying out the general object.12

It is also well-settled that the "one title-one subject" rule does not require the Congress to employ in the title
of the enactment language of such precision as to mirror, fully index or catalogue all the contents and the
minute details therein. The rule is sufficiently complied with if the title is comprehensive enough as to include
the general object which the statute seeks to effect.13 Indeed, this Court has invariably adopted a liberal
rather than technical construction of the rule "so as not to cripple or impede legislation." 14

R.A. No. 9646 is entitled "An Act Regulating the Practice of Real Estate Service in the Philippines, Creating
for the Purpose a Professional Regulatory Board of Real Estate Service, Appropriating Funds Therefor and
For Other Purposes." Aside from provisions establishing a regulatory system for the professionalization of
the real estate service sector, the new law extended its coverage to real estate developers with respect to
their own properties. Henceforth, real estate developers are prohibited from performing acts or transactions
constituting real estate service practice without first complying with registration and licensing requirements
for their business, brokers or agents, appraisers, consultants and salespersons.

Petitioners point out that since partnerships or corporations engaged in marketing or selling any real estate
development project in the regular course of business are now required to be headed by full-time, registered
and licensed real estate brokers, this requirement constitutes limitations on the property rights and business
prerogatives of real estate developers which are not all reflected in the title of R.A. No. 9646. Neither are
real estate developers, who are already regulated under a different law, P.D. No. 957, included in the
definition of real estate service practitioners.
We hold that R.A. No. 9646 does not violate the one-title, one-subject rule.

The primary objective of R.A. No. 9646 is expressed as follows:

SEC. 2. Declaration of Policy. – The State recognizes the vital role of real estate service practitioners in the
social, political, economic development and progress of the country by promoting the real estate market,
stimulating economic activity and enhancing government income from real property-based transactions.
Hence, it shall develop and nurture through proper and effective regulation and supervision a corps of
technically competent, responsible and respected professional real estate service practitioners whose
standards of practice and service shall be globally competitive and will promote the growth of the real estate
industry.

We find that the inclusion of real estate developers is germane to the law’s primary goal of developing "a
corps of technically competent, responsible and respected professional real estate service practitioners
whose standards of practice and service shall be globally competitive and will promote the growth of the
real estate industry." Since the marketing aspect of real estate development projects entails the
performance of those acts and transactions defined as real estate service practices under Section 3(g) of
R.A. No. 9646, it is logically covered by the regulatory scheme to professionalize the entire real estate
service sector.

No Conflict Between R.A. No. 9646

and P.D. No. 957, as amended by E.O. No. 648

Petitioners argue that the assailed provisions still cannot be sustained because they conflict with P.D. No.
957 which decreed that the NHA shall have "exclusive jurisdiction to regulate the real estate trade and
business." Such jurisdiction includes the authority to issue a license to sell to real estate developers and to
register real estate dealers, brokers or salesmen upon their fulfillment of certain requirements under the
law. By imposing limitations on real estate developers’ property rights, petitioners contend that R.A. No.
9646 undermines the licenses to sell issued by the NHA (now the HLURB) to real estate developers allowing
them to sell subdivision lots or condominium units directly to the public. Because the HLURB has been
divested of its exclusive jurisdiction over real estate developers, the result is an implied repeal of P.D. No.
957 as amended by E.O. No. 648, which is not favored in law.

It is a well-settled rule of statutory construction that repeals by implication are not favored. In order to effect
a repeal by implication, the later statute must be so irreconcilably inconsistent and repugnant with the
existing law that they cannot be made to reconcile and stand together. The clearest case possible must be
made before the inference of implied repeal may be drawn, for inconsistency is never presumed. There
must be a showing of repugnance clear and convincing in character. The language used in the later statute
must be such as to render it irreconcilable with what had been formerly enacted. An inconsistency that falls
short of that standard does not suffice.15 Moreover, the failure to add a specific repealing clause indicates
that the intent was not to repeal any existing law, unless an irreconcilable inconsistency and repugnancy
exist in the terms of the new and old laws.16

There is nothing in R.A. No. 9646 that repeals any provision of P.D. No. 957, as amended by E.O. No. 648.
P.D. No. 957, otherwise known as "The Subdivision and Condominium Buyers’ Protective Decree,"17 vested
the NHA with exclusive jurisdiction to regulate the real estate trade and business in accordance with its
provisions. It empowered the NHA to register, approve and monitor real estate development projects and
issue licenses to sell to real estate owners and developers. It further granted the NHA the authority to
register and issue/revoke licenses of brokers, dealers and salesmen engaged in the selling of subdivision
lots and condominium units.

E.O. No. 648, issued on February 7, 1981, reorganized the Human Settlements Regulatory Commission
(HSRC) and transferred the regulatory functions of the NHA under P.D. 957 to the HSRC. Among these
regulatory functions were the (1) regulation of the real estate trade and business; (2) registration of
subdivision lots and condominium projects; (3) issuance of license to sell subdivision lots and condominium
units in the registered units; (4) approval of performance bond and the suspension of license to sell; (5)
registration of dealers, brokers and salesman engaged in the business of selling subdivision lots or
condominium units; and (6) revocation of registration of dealers, brokers and salesmen.18

E.O. No. 90, issued on December 17, 1986, renamed the HSRC as the Housing and Land Use Regulatory
Board (HLURB) and was designated as the regulatory body for housing and land development under the
Housing and Urban Development Coordinating Council (HUDCC). To date, HLURB continues to carry out
its mandate to register real estate brokers and salesmen dealing in condominium, memorial parks and
subdivision projects pursuant to Section 11 of P.D. No. 957, which reads:

SECTION 11. Registration of Dealers, Brokers and Salesmen. – No real estate dealer, broker or salesman
shall engage in the business of selling subdivision lots or condominium units unless he has registered
himself with the Authority in accordance with the provisions of this section.

If the Authority shall find that the applicant is of good repute and has complied with the applicable rules of
the Authority, including the payment of the prescribed fee, he shall register such applicant as a dealer,
broker or salesman upon filing a bond, or other security in lieu thereof, in such sum as may be fixed by the
Authority conditioned upon his faithful compliance with the provisions of this Decree: Provided, that the
registration of a salesman shall cease upon the termination of his employment with a dealer or broker.

Every registration under this section shall expire on the thirty-first day of December of each year. Renewal
of registration for the succeeding year shall be granted upon written application therefore made not less
than thirty nor more than sixty days before the first day of the ensuing year and upon payment of the
prescribed fee, without the necessity of filing further statements or information, unless specifically required
by the Authority. All applications filed beyond said period shall be treated as original applications.

The names and addresses of all persons registered as dealers, brokers, or salesmen shall be recorded in
a Register of Brokers, Dealers and Salesmen kept in the Authority which shall be open to public inspection.

On the other hand, Section 29 of R.A. No. 9646 requires as a condition precedent for all persons who will
engage in acts constituting real estate service, including advertising in any manner one’s qualifications as
a real estate service practitioner, compliance with licensure examination and other registration
requirements including the filing of a bond for real estate brokers and private appraisers. While Section 11
of P.D. No. 957 imposes registration requirements for dealers, brokers and salespersons engaged in the
selling of subdivision lots and condominium units, Section 29 of R.A. No. 9646 regulates all real estate
service practitioners whether private or government. While P.D. No. 957 seeks to supervise brokers and
dealers who are engaged in the sale of subdivision lots and condominium units, R.A. No. 9646 aims to
regulate the real estate service sector in general by professionalizing their ranks and raising the level of
ethical standards for licensed real estate professionals.

There is no conflict of jurisdiction because the HLURB supervises only those real estate service
practitioners engaged in the sale of subdivision lots and condominium projects, specifically for violations of
the provisions of P.D. No. 957, and not the entire real estate service sector which is now under the
regulatory powers of the PRBRES. HLURB’s supervision of brokers and dealers to effectively implement
the provisions of P.D. No. 957 does not foreclose regulation of the real estate service as a profession. Real
estate developers already regulated by the HLURB are now further required to comply with the professional
licensure requirements under R.A. No. 9646, as provided in Sections 28, 29 and 32. Plainly, there is no
inconsistency or contradiction in the assailed provisions of R.A. No. 9646 and P.D. No. 957, as amended.

The rule is that every statute must be interpreted and brought into accord with other laws in a way that will
form a uniform system of jurisprudence. The legislature is presumed to have known existing laws on the
subject and not to have enacted conflicting laws.19 Congress, therefore, could not be presumed to have
intended Sections 28, 29 and 32 of R.A. No. 9646 to run counter to P.D. No. 957.

No Violation of Due Process

Petitioners contend that the assailed provisions of R.A. No. 9646 are unduly oppressive and infringe the
constitutional rule against deprivation of property without due process of law. They stress that real estate
developers are now burdened by law to employ licensed real estate brokers to sell, market and dispose of
their properties. Despite having invested a lot of money, time and resources in their projects, petitioners
aver that real estate developers will still have less control in managing their business and will be burdened
with additional expenses.

The contention has no basis. There is no deprivation of property as no restriction on their use and enjoyment
of property is caused by the implementation of R.A. No. 9646. If petitioners as property owners feel
burdened by the new requirement of engaging the services of only licensed real estate professionals in the
sale and marketing of their properties, such is an unavoidable consequence of a reasonable regulatory
measure.

Indeed, no right is absolute, and the proper regulation of a profession, calling, business or trade has always
been upheld as a legitimate subject of a valid exercise of the police power of the State particularly when
their conduct affects the execution of legitimate governmental functions, the preservation of the State, public
health and welfare and public morals.20 In any case, where the liberty curtailed affects at most the rights of
property, the permissible scope of regulatory measures is certainly much wider. To pretend that licensing
or accreditation requirements violate the due process clause is to ignore the settled practice, under the
mantle of police power, of regulating entry to the practice of various trades or professions. 21

Here, the legislature recognized the importance of professionalizing the ranks of real estate practitioners
by increasing their competence and raising ethical standards as real property transactions are "susceptible
to manipulation and corruption, especially if they are in the hands of unqualified persons working under an
ineffective regulatory system." The new regulatory regime aimed to fully tap the vast potential of the real
estate sector for greater contribution to our gross domestic income, and real estate practitioners "serve a
vital role in spearheading the continuous flow of capital, in boosting investor confidence, and in promoting
overall national progress."22

We thus find R.A. No. 9646 a valid exercise of the State’s police power. As we said in another case
challenging the constitutionality of a law granting discounts to senior citizens:

The law is a legitimate exercise of police power which, similar to the power of eminent domain, has general
welfare for its object. Police power is not capable of an exact definition, but has been purposely veiled in
general terms to underscore its comprehensiveness to meet all exigencies and provide enough room for
an efficient and flexible response to conditions and circumstances, thus assuring the greatest benefits.
Accordingly, it has been described as "the most essential, insistent and the least limitable of powers,
extending as it does to all the great public needs." It is "[t]he power vested in the legislature by the
constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and
ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for
the good and welfare of the commonwealth, and of the subjects of the same."

For this reason, when the conditions so demand as determined by the legislature, property rights must bow
to the primacy of police power because property rights, though sheltered by due process, must yield to
general welfare.

Police power as an attribute to promote the common good would be diluted considerably if on the mere
plea of petitioners that they will suffer loss of earnings and capital, the questioned provision is invalidated.
Moreover, in the absence of evidence demonstrating the alleged confiscatory effect of the provision in
question, there is no basis for its nullification in view of the presumption of validity which every law has in
its favor.23 (Emphasis supplied.)

No Violation of Equal Protection Clause

Section 28 of R.A. No. 9646 exempts from its coverage natural and juridical persons dealing with their own
property, and other persons such as receivers, trustees or assignees in insolvency or bankruptcy
proceedings. However, real estate developers are specifically mentioned as an exception from those
enumerated therein. Petitioners argue that this provision violates the equal protection clause because it
unjustifiably treats real estate developers differently from those exempted persons who also own properties
and desire to sell them. They insist that no substantial distinctions exist between ordinary property owners
and real estate developers as the latter, in fact, are more capable of entering into real estate transactions
and do not need the services of licensed real estate brokers.1âwphi1 They assail the RTC decision in citing
the reported fraudulent practices as basis for the exclusion of real estate developers from the exempted
group of persons under Section 28(a).

We sustain the trial court’s ruling that R.A. No. 9646 does not violate the equal protection clause.

In Ichong v. Hernandez,24 the concept of equal protection was explained as follows:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as
hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is limited
either in the object to which it is directed or by territory within which it is to operate. It does not demand
absolute equality among residents; it merely requires that all persons shall be treated alike, under like
circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection
clause is not infringed by legislation which applies only to those persons falling within such class, and
reasonable grounds exists for making a distinction between those who fall within such class and those who
do not. (2 Cooley, Constitutional Limitations, 824-825).25

Although the equal protection clause of the Constitution does not forbid classification, it is imperative that
the classification should be based on real and substantial differences having a reasonable relation to the
subject of the particular legislation.26 If classification is germane to the purpose of the law, concerns all
members of the class, and applies equally to present and future conditions, the classification does not
violate the equal protection guarantee.27

R.A. No. 9646 was intended to provide institutionalized government support for the development of "a corps
of highly respected, technically competent, and disciplined real estate service practitioners, knowledgeable
of internationally accepted standards and practice of the profession."28 Real estate developers at present
constitute a sector that hires or employs the largest number of brokers, salespersons, appraisers and
consultants due to the sheer number of products (lots, houses and condominium units) they advertise and
sell nationwide. As early as in the ‘70s, there has been a proliferation of errant developers, operators or
sellers who have reneged on their representation and obligations to comply with government regulations
such as the provision and maintenance of subdivision roads, drainage, sewerage, water system and other
basic requirements. To protect the interest of home and lot buyers from fraudulent acts and manipulations
perpetrated by these unscrupulous subdivision and condominium sellers and operators, P.D. No. 957 was
issued to strictly regulate housing and real estate development projects. Hence, in approving R.A. No. 9646,
the legislature rightfully recognized the necessity of imposing the new licensure requirements to all real
estate service practitioners, including and more importantly, those real estate service practitioners working
for real estate developers. Unlike individuals or entities having isolated transactions over their own property,
real estate developers sell lots, houses and condominium units in the ordinary course of business, a
business which is highly regulated by the State to ensure the health and safety of home and lot buyers.

The foregoing shows that substantial distinctions do exist between ordinary property owners exempted
under Section 28(a) and real estate developers like petitioners, and the classification enshrined in R.A. No.
9646 is reasonable and relevant to its legitimate purpose. The Court thus rules that R.A. No. 9646 is valid
and constitutional.

Since every law is presumed valid, the presumption of constitutionality can be overcome only by the clearest
showing that there was indeed an infraction of the Constitution, and only when such a conclusion is reached
by the required majority may the Court pronounce, in the discharge of the duty it cannot escape, that the
challenged act must be struck down.29

Indeed, "all presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging
unconstitutionality must prove its invalidity beyond a reasonable doubt; that a law may work hardship does
not render it unconstitutional; that if any reasonable basis may be conceived which supports the statute, it
will be upheld, and the challenger must negate all possible bases; that the courts are not concerned with
the wisdom, justice, policy, or expediency of a statute; and that a liberal interpretation of the constitution in
favor of the constitutionality of legislation should be adopted." 30

WHEREFORE, the petition is DENIED. The Decision dated July 12, 2011 of the Regional Trial Court of
Manila, Branch 42 in Civil Case No. 10-124776 is hereby AFFIRMED and UPHELD.

No pronouncement as to costs.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice
TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice
DIOSDADO M. PERALTA LUCAS P. BERSAMIN
Associate Justice Associate Justice
MARIANO C. DEL CASTILLO ROBERTO A. ABAD
Associate Justice Associate Justice
JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA
Associate Justice Associate Justice
BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE
Associate Justice Associate Justice
MARVIC MARIO VICTOR F. LEONEN
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the 1987 Constitution, it is hereby certified that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.

MARIA LOURDES P. A. SERENO

Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 193707 December 10, 2014

NORMA A. DEL SOCORRO, for and in behalf of her minor child RODERIGO NORJO VAN WILSEM,
Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to reverse
and set aside the Orders1 dated February 19, 2010 and September 1, 2010, respectively, of the Regional
Trial Court of Cebu City (RTC-Cebu), which dismissed the criminal case entitled People of the Philippines
v. Ernst Johan Brinkman Van Wilsem, docketed as Criminal Case No. CBU-85503, for violation of Republic
Act (R.A.) No. 9262, otherwise known as the Anti-Violence Against Women and Their Children Act of 2004.

The following facts are culled from the records:

Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem contracted marriage
in Holland on September 25, 1990.2 On January 19, 1994, they were blessed with a son named Roderigo
Norjo Van Wilsem, who at the time of the filing of the instant petition was sixteen (16) years of age. 3

Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce Decree issued by the
appropriate Court of Holland.4 At that time, their son was only eighteen (18) months old.5 Thereafter,
petitioner and her son came home to the Philippines.6

According to petitioner, respondent made a promise to provide monthly support to their son in the amount
of Two Hundred Fifty (250) Guildene (which is equivalent to Php17,500.00 more or less). 7 However, since
the arrival of petitioner and her son in the Philippines, respondent never gave support to the son, Roderigo. 8

Not long thereafter, respondent cameto the Philippines and remarried in Pinamungahan, Cebu, and since
then, have been residing thereat.9 Respondent and his new wife established a business known as Paree
Catering, located at Barangay Tajao, Municipality of Pinamungahan, Cebu City. 10 To date, all the parties,
including their son, Roderigo, are presently living in Cebu City.11

On August 28, 2009, petitioner, through her counsel, sent a letter demanding for support from respondent.
However, respondent refused to receive the letter.12

Because of the foregoing circumstances, petitioner filed a complaint affidavit with the Provincial Prosecutor
of Cebu City against respondent for violation of Section 5, paragraph E(2) of R.A. No. 9262 for the latter’s
unjust refusal to support his minor child with petitioner.13 Respondent submitted his counter-affidavit thereto,
to which petitioner also submitted her reply-affidavit.14 Thereafter, the Provincial Prosecutor of Cebu City
issued a Resolution recommending the filing of an information for the crime charged against herein
respondent.

The information, which was filed with the RTC-Cebu and raffled to Branch 20 thereof, states that:

That sometime in the year 1995 and up to the present, more or less, in the Municipality of Minglanilla,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there wilfully, unlawfully and deliberately deprive, refuse and still continue to deprive
his son RODERIGO NORJO VAN WILSEM, a fourteen (14) year old minor, of financial support legally due
him, resulting in economic abuse to the victim. CONTRARY TO LAW.15

Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure Order against
respondent.16 Consequently, respondent was arrested and, subsequently, posted bail. 17 Petitioner also filed
a Motion/Application of Permanent Protection Order to which respondent filed his Opposition. 18 Pending
the resolution thereof, respondent was arraigned.19 Subsequently, without the RTC-Cebu having resolved
the application of the protection order, respondent filed a Motion to Dismiss on the ground of: (1) lack of
jurisdiction over the offense charged; and (2) prescription of the crime charged.20

On February 19, 2010, the RTC-Cebu issued the herein assailed Order,21 dismissing the instant criminal
case against respondent on the ground that the facts charged in the information do not constitute an offense
with respect to the respondent who is an alien, the dispositive part of which states:

WHEREFORE, the Court finds that the facts charged in the information do not constitute an offense with
respect to the accused, he being an alien, and accordingly, orders this case DISMISSED.

The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his provisional liberty is hereby
cancelled (sic) and ordered released.

SO ORDERED.

Cebu City, Philippines, February 19, 2010.22

Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating respondent’s obligation to
support their child under Article 19523 of the Family Code, thus, failure to do so makes him liable under R.A.
No. 9262 which "equally applies to all persons in the Philippines who are obliged to support their minor
children regardless of the obligor’s nationality."24

On September 1, 2010, the lower court issued an Order 25 denying petitioner’s Motion for Reconsideration
and reiterating its previous ruling. Thus:

x x x The arguments therein presented are basically a rehash of those advanced earlier in the memorandum
of the prosecution. Thus, the court hereby reiterates its ruling that since the accused is a foreign national
he is not subject to our national law (The Family Code) in regard to a parent’s duty and obligation to
givesupport to his child. Consequently, he cannot be charged of violating R.A. 9262 for his alleged failure
to support his child. Unless it is conclusively established that R.A. 9262 applies to a foreigner who fails to
give support tohis child, notwithstanding that he is not bound by our domestic law which mandates a parent
to give such support, it is the considered opinion of the court that no prima faciecase exists against the
accused herein, hence, the case should be dismissed.

WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit.

SO ORDERED.

Cebu City, Philippines, September 1, 2010.26

Hence, the present Petition for Review on Certiorari raising the following issues:

1. Whether or not a foreign national has an obligation to support his minor child under Philippine law; and

2. Whether or not a foreign national can be held criminally liable under R.A. No. 9262 for his unjustified
failure to support his minor child.27

At the outset, let it be emphasized that We are taking cognizance of the instant petition despite the fact that
the same was directly lodged with the Supreme Court, consistent with the ruling in Republic v. Sunvar
Realty Development Corporation,28 which lays down the instances when a ruling of the trial court may be
brought on appeal directly to the Supreme Court without violating the doctrine of hierarchy of courts, to wit:

x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45 Petition with this Court,
in case only questions of law are raised or involved. This latter situation was one that petitioners found
themselves in when they filed the instant Petition to raise only questions of law. In Republic v. Malabanan,
the Court clarified the three modes of appeal from decisions of the RTC, to wit: (1) by ordinary appeal or
appeal by writ of error under Rule 41, whereby judgment was rendered in a civil or criminal action by the
RTC in the exercise of its original jurisdiction; (2) by a petition for review under Rule 42, whereby judgment
was rendered by the RTC in the exercise of its appellate jurisdiction; and (3) by a petition for review on
certiorari before the Supreme Court under Rule 45. "The first mode of appeal is taken to the [Court of
Appeals] on questions of fact or mixed questions of fact and law. The second mode of appeal is brought to
the CA on questions of fact, of law, or mixed questions of fact and law. The third mode of appealis elevated
to the Supreme Court only on questions of law." (Emphasis supplied)

There is a question of law when the issue does not call for an examination of the probative value of the
evidence presented or of the truth or falsehood of the facts being admitted, and the doubt concerns the
correct application of law and jurisprudence on the matter. The resolution of the issue must rest solely on
what the law provides on the given set of circumstances.29

Indeed, the issues submitted to us for resolution involve questions of law – the response thereto concerns
the correct application of law and jurisprudence on a given set of facts, i.e.,whether or not a foreign national
has an obligation to support his minor child under Philippine law; and whether or not he can be held
criminally liable under R.A. No. 9262 for his unjustified failure to do so.

It cannot be negated, moreover, that the instant petition highlights a novel question of law concerning the
liability of a foreign national who allegedly commits acts and omissions punishable under special criminal
laws, specifically in relation to family rights and duties. The inimitability of the factual milieu of the present
case, therefore, deserves a definitive ruling by this Court, which will eventually serve as a guidepost for
future cases. Furthermore, dismissing the instant petition and remanding the same to the CA would only
waste the time, effort and resources of the courts. Thus, in the present case, considerations of efficiency
and economy in the administration of justice should prevail over the observance of the hierarchy of courts.

Now, on the matter of the substantive issues, We find the petition meritorious. Nonetheless, we do not fully
agree with petitioner’s contentions.

To determine whether or not a person is criminally liable under R.A. No. 9262, it is imperative that the legal
obligation to support exists.

Petitioner invokes Article 19530 of the Family Code, which provides the parent’s obligation to support his
child. Petitioner contends that notwithstanding the existence of a divorce decree issued in relation to Article
26 of the Family Code,31 respondent is not excused from complying with his obligation to support his minor
child with petitioner.

On the other hand, respondent contends that there is no sufficient and clear basis presented by petitioner
that she, as well as her minor son, are entitled to financial support.32 Respondent also added that by reason
of the Divorce Decree, he is not obligated topetitioner for any financial support.33

On this point, we agree with respondent that petitioner cannot rely on Article 195 34 of the New Civil Code
in demanding support from respondent, who is a foreign citizen, since Article 15 35 of the New Civil Code
stresses the principle of nationality. In other words, insofar as Philippine laws are concerned, specifically
the provisions of the Family Code on support, the same only applies to Filipino citizens. By analogy, the
same principle applies to foreigners such that they are governed by their national law with respect to family
rights and duties.36
The obligation to give support to a child is a matter that falls under family rights and duties. Since the
respondent is a citizen of Holland or the Netherlands, we agree with the RTC-Cebu that he is subject to the
laws of his country, not to Philippinelaw, as to whether he is obliged to give support to his child, as well as
the consequences of his failure to do so.37

In the case of Vivo v. Cloribel,38 the Court held that –

Furthermore, being still aliens, they are not in position to invoke the provisions of the Civil Code of the
Philippines, for that Code cleaves to the principle that family rights and duties are governed by their personal
law, i.e.,the laws of the nation to which they belong even when staying in a foreign country (cf. Civil Code,
Article 15).39

It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioner’s son under
Article195 of the Family Code as a consequence of the Divorce Covenant obtained in Holland. This does
not, however, mean that respondent is not obliged to support petitioner’s son altogether.

In international law, the party who wants to have a foreign law applied to a dispute or case has the burden
of proving the foreign law.40 In the present case, respondent hastily concludes that being a national of the
Netherlands, he is governed by such laws on the matter of provision of and capacity to support. 41 While
respondent pleaded the laws of the Netherlands in advancing his position that he is not obliged to support
his son, he never proved the same.

It is incumbent upon respondent to plead and prove that the national law of the Netherlands does not
impose upon the parents the obligation to support their child (either before, during or after the issuance of
a divorce decree), because Llorente v. Court of Appeals,42 has already enunciated that:

True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to
takejudicial notice of them. Like any other fact, they must be alleged and proved. 43

In view of respondent’s failure to prove the national law of the Netherlands in his favor, the doctrine of
processual presumption shall govern. Under this doctrine, if the foreign law involved is not properly pleaded
and proved, our courts will presume that the foreign law is the same as our local or domestic or internal
law.44 Thus, since the law of the Netherlands as regards the obligation to support has not been properly
pleaded and proved in the instant case, it is presumed to be the same with Philippine law, which enforces
the obligation of parents to support their children and penalizing the non-compliance therewith.

Moreover, while in Pilapil v. Ibay-Somera,45 the Court held that a divorce obtained in a foreign land as well
as its legal effects may be recognized in the Philippines in view of the nationality principle on the matter of
status of persons, the Divorce Covenant presented by respondent does not completely show that he is
notliable to give support to his son after the divorce decree was issued. Emphasis is placed on petitioner’s
allegation that under the second page of the aforesaid covenant, respondent’s obligation to support his
child is specifically stated,46 which was not disputed by respondent.

We likewise agree with petitioner that notwithstanding that the national law of respondent states that parents
have no obligation to support their children or that such obligation is not punishable by law, said law would
still not find applicability,in light of the ruling in Bank of America, NT and SA v. American Realty
Corporation,47 to wit:

In the instant case, assuming arguendo that the English Law on the matter were properly pleaded and
proved in accordance with Section 24, Rule 132 of the Rules of Court and the jurisprudence laid down in
Yao Kee, et al. vs. Sy-Gonzales, said foreign law would still not find applicability.

Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy of the
forum, the said foreign law, judgment or order shall not be applied.
Additionally, 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.

The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction
proscribing the splitting up of a single cause of action.

Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent

If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment
upon the merits in any one is available as a ground for the dismissal of the others. Moreover, foreign law
should not be applied when its application would work undeniable injustice to the citizens or residents of
the forum. To give justice is the most important function of law; hence, a law, or judgment or contract that
is obviously unjust negates the fundamental principles of Conflict of Laws. 48

Applying the foregoing, even if the laws of the Netherlands neither enforce a parent’s obligation to support
his child nor penalize the noncompliance therewith, such obligation is still duly enforceable in the Philippines
because it would be of great injustice to the child to be denied of financial support when the latter is entitled
thereto.

We emphasize, however, that as to petitioner herself, respondent is no longer liable to support his former
wife, in consonance with the ruling in San Luis v. San Luis,49 to wit:

As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longerbe considered
marriedto 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 married
to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code
cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render
support to private respondent. The latter should not continue to be one of her heirs with possible rights to
conjugal property. She should not be discriminated against in her own country if the ends of justice are to
be served. (Emphasis added)50

Based on the foregoing legal precepts, we find that respondent may be made liable under Section 5(e) and
(i) of R.A. No. 9262 for unjustly refusing or failing to give support topetitioner’s son, to wit:

SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against women
and their children is committed through any of the following acts:

xxxx

(e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or
her child has the right to desist from or desist from conduct which the woman or her child has the right to
engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct
by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed
against the woman or child. This shall include, butnot limited to, the following acts committed with the
purpose or effect of controlling or restricting the woman's or her child's movement or conduct:

xxxx

(2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her
family, or deliberately providing the woman's children insufficient financial support; x x x x
(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including,
but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor
childrenof access to the woman's child/children.51

Under the aforesaid special law, the deprivation or denial of financial support to the child is considered
anact of violence against women and children.

In addition, considering that respondent is currently living in the Philippines, we find strength in petitioner’s
claim that the Territoriality Principle in criminal law, in relation to Article 14 of the New Civil Code, applies
to the instant case, which provides that: "[p]enal laws and those of public security and safety shall be
obligatory upon all who live and sojourn in Philippine territory, subject to the principle of public international
law and to treaty stipulations." On this score, it is indisputable that the alleged continuing acts of respondent
in refusing to support his child with petitioner is committed here in the Philippines as all of the parties herein
are residents of the Province of Cebu City. As such, our courts have territorial jurisdiction over the offense
charged against respondent. It is likewise irrefutable that jurisdiction over the respondent was acquired
upon his arrest.

Finally, we do not agree with respondent’s argument that granting, but not admitting, that there is a legal
basis for charging violation of R.A. No. 9262 in the instant case, the criminal liability has been extinguished
on the ground of prescription of crime52 under Section 24 of R.A. No. 9262, which provides that:

SECTION 24. Prescriptive Period. – Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty (20)
years. Acts falling under Sections 5(g) to 5(I) shall prescribe in ten (10) years.

The act of denying support to a child under Section 5(e)(2) and (i) of R.A. No. 9262 is a continuing offense, 53
which started in 1995 but is still ongoing at present. Accordingly, the crime charged in the instant case has
clearly not prescribed.

Given, however, that the issue on whether respondent has provided support to petitioner’s child calls for an
examination of the probative value of the evidence presented, and the truth and falsehood of facts being
admitted, we hereby remand the determination of this issue to the RTC-Cebu which has jurisdiction over
the case.

WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010 and September 1, 2010,
respectively, of the Regional Trial Court of the City of Cebu are hereby REVERSED and SET ASIDE. The
case is REMANDED to the same court to conduct further proceedings based on the merits of the case.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

MARTIN S. VILLARAMA, JR. JOSE CATRAL MENDOZA*

Associate Justice
Associate Justice
BIENVENIDO L. REYES
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court's Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify
that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court's Division.

MARIA LOURDES P.A. SERENO

Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner,

vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:

A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City
alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed,
insulted and humiliated her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity
and personality," contrary to morals, good customs and public policy." 1

In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages,
attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests
and other reliefs awardable at the trial court's discretion. The transcript on which the civil case was based
was culled from a tape recording of the confrontation made by petitioner. 2 The transcript reads as follows:

Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon M'am.

Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka napunta
rito, porke member ka na, magsumbong ka kung ano ang gagawin ko sa 'yo.

CHUCHI — Kasi, naka duty ako noon.

ESG — Tapos iniwan no. (Sic)

CHUCHI — Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon —

ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00 p.m.,
kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka
sa review mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi.

CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m.

ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. Magsumbong ka sa Union
kung gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you think that on your own
makakapasok ka kung hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita).

CHUCHI — Itutuloy ko na M'am sana ang duty ko.

ESG — Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.

ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko naman
kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa.

CHUCHI — Kumuha kami ng exam noon.

ESG — Oo, pero hindi ka papasa.

CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo

ESG — Kukunin ka kasi ako.

CHUCHI — Eh, di sana —

ESG — Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha ka dito kung
hindi ako.

CHUCHI — Mag-eexplain ako.

ESG — Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka puma-rito. "Putang-
ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga magulang ko.

ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok,
okey yan nasaloob ka umalis ka doon.

CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union.

ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako. Kung
hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.

CHUCHI — Ina-ano ko m'am na utang na loob.

ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo ako.

CHUCHI — Paano kita nilapastanganan?

ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na. Magsumbong ka. 3

As a result of petitioner's recording of the event and alleging that the said act of secretly taping the
confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of Pasay
City for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and other
related violations of private communication, and other purposes." An information charging petitioner of
violation of the said Act, dated October 6, 1988 is quoted herewith:

INFORMATION

The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No. 4200,
committed as follows:

That on or about the 22nd day of February, 1988, in Pasay City Metro Manila, Philippines,
and within the jurisdiction of this honorable court, the above-named accused, Socorro D.
Ramirez not being authorized by Ester S. Garcia to record the latter's conversation with
said accused, did then and there willfully, unlawfully and feloniously, with the use of a tape
recorder secretly record the said conversation and thereafter communicate in writing the
contents of the said recording to other person.

Contrary to law.

Pasay City, Metro Manila, September 16, 1988.

MARIANO M. CUNETA
Asst. City Fiscal

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that
the facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989,
the trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts charged do not
constitute an offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping
of a communication by a person other than a participant to the communication.4

From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court,
which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19,
1989.

On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial
court's order of May 3, 1989 null and void, and holding that:

[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus
quashing the information based on the ground that the facts alleged do not constitute an offense,
the respondent judge acted in grave abuse of discretion correctible by certiorari.5

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court
of Appeals denied in its Resolution6 dated June 19, 1990. Hence, the instant petition.

Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision of Republic
Act 4200 does not apply to the taping of a private conversation by one of the parties to the conversation.
She contends that the provision merely refers to the unauthorized taping of a private conversation by a
party other than those involved in the communication.8 In relation to this, petitioner avers that the substance
or content of the conversation must be alleged in the Information, otherwise the facts charged would not
constitute a violation of R.A. 4200.9 Finally, petitioner agues that R.A. 4200 penalizes the taping of a "private
communication," not a "private conversation" and that consequently, her act of secretly taping her
conversation with private respondent was not illegal under the said act. 10

We disagree.

First, legislative intent is determined principally from the language of a statute. Where the language of a
statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would
be resorted to only where a literal interpretation would be either impossible 11 or absurb or would lead to an
injustice. 12

Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related
Violations of Private Communication and Other Purposes," provides:

Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such communication or spoken word by
using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or
tape recorder, or however otherwise described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all
the parties to any private communication to secretly record such communication by means of a tape
recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought
to be a party other than or different from those involved in the private communication. The statute's intent
to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier
"any". Consequently, as respondent Court of Appeals correctly concluded, "even a (person) privy to a
communication who records his private conversation with another without the knowledge of the latter (will)
qualify as a violator" 13 under this provision of R.A. 4200.

A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that
in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of
private conversations or communications taken either by the parties themselves or by third persons. Thus:
 xxx xxx xxx

Senator Tañada: That qualified only "overhear".

Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to be
material. Now, suppose, Your Honor, the recording is not made by all the parties but by some parties and
involved not criminal cases that would be mentioned under section 3 but would cover, for example civil
cases or special proceedings whereby a recording is made not necessarily by all the parties but perhaps
by some in an effort to show the intent of the parties because the actuation of the parties prior, simultaneous
even subsequent to the contract or the act may be indicative of their intention. Suppose there is such a
recording, would you say, Your Honor, that the intention is to cover it within the purview of this bill or
outside?

Senator Tañada: That is covered by the purview of this bill, Your Honor.

Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to be
used in Civil Cases or special proceedings?

Senator Tañada: That is right. This is a complete ban on tape recorded conversations taken without the
authorization of all the parties.

Senator Padilla: Now, would that be reasonable, your Honor?

Senator Tañada: I believe it is reasonable because it is not sporting to record the observation of one without
his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the purpose; Your honor,
is to record the intention of the parties. I believe that all the parties should know that the observations are
being recorded.

Senator Padilla: This might reduce the utility of recorders.

Senator Tañada: Well no. For example, I was to say that in meetings of the board of directors where a tape
recording is taken, there is no objection to this if all the parties know. It is but fair that the people whose
remarks and observations are being made should know that the observations are being recorded.

Senator Padilla: Now, I can understand.

Senator Tañada: That is why when we take statements of persons, we say: "Please be informed that
whatever you say here may be used against you." That is fairness and that is what we demand. Now, in
spite of that warning, he makes damaging statements against his own interest, well, he cannot complain
any more. But if you are going to take a recording of the observations and remarks of a person without him
knowing that it is being taped or recorded, without him knowing that what is being recorded may be used
against him, I think it is unfair.

xxx xxx xxx

(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a party
secretly records a public speech, he would be penalized under Section 1? Because the speech is public,
but the recording is done secretly.

Senator Tañada: Well, that particular aspect is not contemplated by the bill. It is the communication between
one person and another person — not between a speaker and a public.

xxx xxx xxx

(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
 xxx xxx xxx

The unambiguity of the express words of the provision, taken together with the above-quoted deliberations
from the Congressional Record, therefore plainly supports the view held by the respondent court that the
provision seeks to penalize even those privy to the private communications. Where the law makes no
distinctions, one does not distinguish.

Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the
same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly
overhearing, intercepting or recording private communications by means of the devices enumerated
therein. The mere allegation that an individual made a secret recording of a private communication by
means of a tape recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the
Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere (in the said law) is
it required that before one can be regarded as a violator, the nature of the conversation, as well as its
communication to a third person should be professed." 14

Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not
include "private conversations" narrows the ordinary meaning of the word "communication" to a point of
absurdity. The word communicate comes from the latin word communicare, meaning "to share or to impart."
In its ordinary signification, communication connotes the act of sharing or imparting signification,
communication connotes the act of sharing or imparting, as in a conversation, 15 or signifies the "process
by which meanings or thoughts are shared between individuals through a common system of symbols (as
language signs or gestures)" 16 These definitions are broad enough to include verbal or non-verbal, written
or expressive communications of "meanings or thoughts" which are likely to include the emotionally-
charged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the
latter's office. Any doubts about the legislative body's meaning of the phrase "private communication" are,
furthermore, put to rest by the fact that the terms "conversation" and "communication" were interchangeably
used by Senator Tañada in his Explanatory Note to the bill quoted below:

It has been said that innocent people have nothing to fear from their conversations being overheard.
But this statement ignores the usual nature of conversations as well the undeniable fact that most,
if not all, civilized people have some aspects of their lives they do not wish to expose. Free
conversations are often characterized by exaggerations, obscenity, agreeable falsehoods, and the
expression of anti-social desires of views not intended to be taken seriously. The right to the privacy
of communication, among others, has expressly been assured by our Constitution. Needless to
state here, the framers of our Constitution must have recognized the nature of conversations
between individuals and the significance of man's spiritual nature, of his feelings and of his intellect.
They must have known that part of the pleasures and satisfactions of life are to be found in the
unaudited, and free exchange of communication between individuals — free from every
unjustifiable intrusion by whatever means.17

In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone wiretapping,
we held that the use of a telephone extension for the purpose of overhearing a private conversation without
authorization did not violate R.A. 4200 because a telephone extension devise was neither among those
"device(s) or arrangement(s)" enumerated therein, 19 following the principle that "penal statutes must be
construed strictly in favor of the accused." 20 The instant case turns on a different note, because the
applicable facts and circumstances pointing to a violation of R.A. 4200 suffer from no ambiguity, and the
statute itself explicitly mentions the unauthorized "recording" of private communications with the use of
tape-recorders as among the acts punishable.

WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us
with no discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs
against petitioner.
SO ORDERED.

Padilla, Davide, Jr. and Bellosillo JJ., concur.

Hermosisima, Jr., J., is on leave.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 82511 March 3, 1992

GLOBE-MACKAY CABLE AND RADIO CORPORATION, petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION and IMELDA SALAZAR, respondents.

Castillo, Laman, Tan & Pantaleon for petitioner.

Gerardo S. Alansalon for private respondent.

ROMERO, J.:

For private respondent Imelda L. Salazar, it would seem that her close association with Delfin Saldivar
would mean the loss of her job. In May 1982, private respondent was employed by Globe-Mackay Cable
and Radio Corporation (GMCR) as general systems analyst. Also employed by petitioner as manager for
technical operations' support was Delfin Saldivar with whom private respondent was allegedly very close.

Sometime in 1984, petitioner GMCR, prompted by reports that company equipment and spare parts worth
thousands of dollars under the custody of Saldivar were missing, caused the investigation of the latter's
activities. The report dated September 25, 1984 prepared by the company's internal auditor, Mr. Agustin
Maramara, indicated that Saldivar had entered into a partnership styled Concave Commercial and Industrial
Company with Richard A. Yambao, owner and manager of Elecon Engineering Services (Elecon), a
supplier of petitioner often recommended by Saldivar. The report also disclosed that Saldivar had taken
petitioner's missing Fedders airconditioning unit for his own personal use without authorization and also
connived with Yambao to defraud petitioner of its property. The airconditioner was recovered only after
petitioner GMCR filed an action for replevin against Saldivar. 1

It likewise appeared in the course of Maramara's investigation that Imelda Salazar violated company
reglations by involving herself in transactions conflicting with the company's interests. Evidence showed
that she signed as a witness to the articles of partnership between Yambao and Saldivar. It also appeared
that she had full knowledge of the loss and whereabouts of the Fedders airconditioner but failed to inform
her employer.

Consequently, in a letter dated October 8, 1984, petitioner company placed private respondent Salazar
under preventive suspension for one (1) month, effective October 9, 1984, thus giving her thirty (30) days
within which to, explain her side. But instead of submitting an explanations three (3) days later or on October
12, 1984 private respondent filed a complaint against petitioner for illegal suspension, which she
subsequently amended to include illegal dismissal, vacation and sick leave benefits, 13th month pay and
damages, after petitioner notified her in writing that effective November 8, 1984, she was considered
dismissed "in view of (her) inability to refute and disprove these findings. 2

After due hearing, the Labor Arbiter in a decision dated July 16, 1985, ordered petitioner company to
reinstate private respondent to her former or equivalent position and to pay her full backwages and other
benefits she would have received were it not for the illegal dismissal. Petitioner was also ordered to pay
private respondent moral damages of P50,000.00. 3
On appeal, public respondent National Labor Relations, Commission in the questioned resolution dated
December 29, 1987 affirmed the aforesaid decision with respect to the reinstatement of private respondent
but limited the backwages to a period of two (2) years and deleted the award for moral damages. 4

Hence, this petition assailing the Labor Tribunal for having committed grave abuse of discretion in holding
that the suspension and subsequent dismissal of private respondent were illegal and in ordering her
reinstatement with two (2) years' backwages.

On the matter of preventive suspension, we find for petitioner GMCR.

The inestigative findings of Mr. Maramara, which pointed to Delfin Saldivar's acts in conflict with his position
as technical operations manager, necessitated immediate and decisive action on any employee closely,
associated with Saldivar. The suspension of Salazar was further impelled by th.e discovery of the missing
Fedders airconditioning unit inside the apartment private respondent shared with Saldivar. Under such
circumstances, preventive suspension was the proper remedial recourse available to the company pending
Salazar's investigation. By itself, preventive suspension does, not signify that the company has adjudged
the employee guilty of the charges she was asked to answer and explain. Such disciplinary measure is
resorted to for the protection of the company's property pending investigation any alleged malfeasance or
misfeasance committed by the employee.5

Thus, it is not correct to conclude that petitioner GMCR had violated Salazar's right to due process when
she was promptly suspended. If at all, the fault, lay with private respondent when she ignored petitioner's
memorandum of October 8, 1984 "giving her ample opportunity to present (her) side to the Management."
Instead, she went directly to the Labor Department and filed her complaint for illegal suspension without
giving her employer a chance to evaluate her side of the controversy.

But while we agree with the propriety of Salazar's preventive suspension, we hold that her eventual
separation from employment was not for cause.

What is the remedy in law to rectify an unlawful dismissal so as to "make whole" the victim who has not
merely lost her job which, under settled Jurisprudence, is a property right of which a person is not to be
deprived without due process, but also the compensation that should have accrued to her during the period
when she was unemployed?

Art. 279 of the Labor Code, as amended, provides:

Security of Tenure. — In cases of regular employment, the employer shall not terminate the
services of an employee except for a just cause or when authorized by this Title. An employee who
is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and
other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their
monetary equivalent computed from the time his compensation was withheld from him up to the
time of his actual reinstatement. 6 (Emphasis supplied)

Corollary thereto are the following provisions of the Implementing Rules and Regulations of the Labor Code:

Sec. 2. Security of Tenure. — In cases of regular employments, the employer shall not terminate
the services of an employee except for a just cause as provided in the Labor Code or when
authorized by existing laws.

Sec. 3. Reinstatement. — An employee who is unjustly dismissed from work shall by entitled to
reinstatement without loss of seniority rights and to backwages."7 (Emphasis supplied)

Before proceeding any furthers, it needs must be recalled that the present Constitution has gone further
than the 1973 Charter in guaranteeing vital social and economic rights to marginalized groups of society,
including labor. Given the pro-poor orientation of several articulate Commissioners of the Constitutional
Commission of 1986, it was not surprising that a whole new Article emerged on Social Justice and Human
Rights designed, among other things, to "protect and enhance the right of all the people to human dignity,
reduce social, economic and political inequalities, and remove cultural inequities by equitably diffusing
wealth and political power for the common good." 8 Proof of the priority accorded to labor is that it leads
the other areas of concern in the Article on Social Justice, viz., Labor ranks ahead of such topics as Agrarian
and Natural Resources Reform, Urban Land Roform and Housing, Health, Women, Role and Rights of
Poople's Organizations and Human Rights.9

The opening paragraphs on Labor states

The State shall afford full protection to labor, local and overseas, organized and unorganized, and
promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to
security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and
decision-making processes affecting their rights and benefits is may be provided by law. 10 (Emphasis
supplied)

Compare this with the sole.provision on Labor in the 1973 Constitution under the Article an Declaration of
Principles and State Policies that provides:

Sec. 9. The state shall afford protection to labor, promote full employment and equality in
employment, ensure equal work opportunities regardless of sex, race, or creed, and regulate the
relations between workers and employers. The State shall ensure the rights of workers to self-
organization, collective baegaining, security of tenure, and just and humane conditions of work.
The State may provide for compulsory arbitration. 11

To be sure, both Charters recognize "security of tenure" as one of the rights of labor which the State is
mandated to protect. But there is no gainsaying the fact that the intent of the framers of the present
Constitution was to give primacy to the rights of labor and afford the sector "full protection," at least greater
protection than heretofore accorded them, regardless of the geographical location of the workers and
whether they are organized or not.

It was then CONCOM Commissioner, now Justice Hilario G. Davide, Jr., who substantially contributed to
the present formulation of the protection to labor provision and proposed that the same be incorporated in
the Article on Social Justice and not just in the Article on Declaration of Principles and State Policies "in the
light of the special importance that we are giving now to social justice and the necessity of emphasizing the
scope and role of social justice in national development." 12

If we have taken pains to delve into the background of the labor provisions in our Constitution and the Labor
Code, it is but to stress that the right of an employee not to be dismissed from his job except for a just or
authorized cause provided by law has assumed greater importance under the 1987 Constitution with the
singular prominence labor enjoys under the article on Social Justice. And this transcendent policy has been
translated into law in the Labor Code. Under its terms, where a case of unlawful or unauthorized dismissal
has been proved by the aggrieved employee, or on the other hand, the employer whose duty it is to prove
the lawfulness or justness of his act of dismissal has failed to do so, then the remedies provided in Article
279 should find, application. Consonant with this liberalized stance vis-a-vis labor, the legislature even went
further by enacting Republic Act No. 6715 which took effect on March 2, 1989 that amended said Article to
remove any possible ambiguity that jurisprudence may have generated which watered down the
constitutional intent to grant to labor "full protection." 13

To go back to the instant case, there being no evidence to show an authorized, much less a legal, cause
for the dismissal of private respondent, she had every right, not only to be entitled to reinstatement, but ay
well, to full backwages." 14
The intendment of the law in prescribing the twin remedies of reinstatement and payment of backwages is,
in the former, to restore the dismissed employee to her status before she lost her job, for the dictionary
meaning of the word "reinstate" is "to restore to a state, conditione positions etc. from which one had been
removed"15 and in the latter, to give her back the income lost during the period of unemployment. Both
remedies, looking to the past, would perforce make her "whole."

Sadly, the avowed intent of the law has at times been thwarted when reinstatement has not been
forthcoming and the hapless dismissed employee finds himself on the outside looking in.

Over time, the following reasons have been advanced by the Court for denying reinstatement under the
facts of the case and the law applicable thereto; that reinstatement can no longer be effected in view of the
long passage of time (22 years of litigation) or because of the realities of the situation; 16 or that it would be
"inimical to the employer's interest; " 17 or that reinstatement may no longer be feasible; 18 or, that it will not
serve the best interests of the parties involved; 19 or that the company would be prejudiced by the workers'
continued employment; 20 or that it will not serve any prudent purpose as when supervening facts have
transpired which make execution on that score unjust or inequitable 21 or, to an increasing extent, due to
the resultant atmosphere of "antipathy and antagonism" or "strained relations" or "irretrievable
estrangement" between the employer and the employee. 22

In lieu of reinstatement, the Court has variously ordered the payment of backwages and separation pay 23

or solely separation pay. 24

In the case at bar, the law is on the side of private respondent. In the first place the wording of the Labor
Code is clear and unambiguous: "An employee who is unjustly dismissed from work shall be entitled to
reinstatement. . . . and to his full backwages. . . ." 25 Under the principlesof statutory construction, if a statute
is clears plain and free from ambiguity, it must be given its literal meaning and applied without attempted
interpretation. This plain-meaning rule or verba legis derived from the maxim index animi sermo est (speech
is the index of intention) rests on the valid presumption that the words employed by, the legislature in a
statute correctly express its intent or will and preclude the court from construing it differently. 26 The
legislature is presumed to know the meaning of the words, to:have used words advisedly, and to have
expressed its intent by the use of such words as are found in the statute.27 Verba legis non est recedendum,
or from the words of a statute there should be no departure. Neither does the provision admit of any
qualification. If in the wisdom of the Court, there may be a ground or grounds for non-application of the
above-cited provision, this should be by way of exception, such as when the reinstatement may be
inadmissible due to ensuing strained relations between the employer and the employee.

In such cases, it should be proved that the employee concerned occupies a position where he enjoys the
trust and confidence of his employer; and that it is likely that if reinstated, an atmosphere of antipathy and
antagonism may be generated as to adversely affect the efficiency and productivity of the employee
concerned.

A few examples, will suffice to illustrate the Court's application of the above principles: where the employee
is a Vice-President for Marketing and as such, enjoys the full trust and confidence of top management; 28
or is the Officer-In-Charge of the extension office of the bank where he works; 29 or is an organizer of a
union who was in a position to sabotage the union's efforts to organize the workers in commercial and
industrial establishments; 30 or is a warehouseman of a non-profit organization whose primary purpose is
to facilitate and maximize voluntary gifts. by foreign individuals and organizations to the Philippines; 31 or is
a manager of its Energy Equipment Sales. 32

Obviously, the principle of "strained relations" cannot be applied indiscriminately. Otherwisey reinstatement
can never be possible simply because some hostility is invariably engendered between the parties as a
result of litigation. That is human nature. 33
Besides, no strained relations should arise from a valid and legal act of asserting one's right; otherwise an
employee who shall assert his right could be easily separated from the service, by merely paying his
separation pay on the pretext that his relationship with his employer had already become strained. 34

Here, it has not been proved that the position of private respondent as systems analyst is one that may be
characterized as a position of trust and confidence such that if reinstated, it may well lead to strained
relations between employer and employee. Hence, this does not constitute an exception to the general rule
mandating reinstatement for an employee who has been unlawfully dismissed.

On the other hand, has she betrayed any confidence reposed in her by engaging in transactions that may
have created conflict of interest situations? Petitioner GMCR points out that as a matter of company policy,
it prohibits its employees from involving themselves with any company that has business dealings with
GMCR. Consequently, when private respondent Salazar signed as a witness to the partnership papers of
Concave (a supplier of Ultra which in turn is also a supplier of GMCR), she was deemed to have placed.
herself in an untenable position as far as petitioner was concerned.

However, on close scrutiny, we agree with public respondent that such a circumstance did not create a
conflict of interests situation. As a systems analyst, Salazar was very far removed from operations involving
the procurement of supplies. Salazar's duties revolved around the development of systems and analysis of
designs on a continuing basis. In other words, Salazar did not occupy a position of trust relative to the
approval and purchase of supplies and company assets.

In the instant case, petitioner has predicated its dismissal of Salazar on loss of confidence. As we have
held countless times, while loss of confidence or breach of trust is a valid ground for terminations it must
rest an some basis which must be convincingly established. 35 An employee who not be dismissed on mere
presumptions and suppositions. Petitioner's allegation that since Salazar and Saldivar lived together in the
same apartment, it "presumed reasonably that complainant's sympathy would be with Saldivar" and its
averment that Saldivar's investigation although unverified, was probably true, do not pass this Court's test.
36 While we should not condone the acts of disloyalty of an employee, neither should we dismiss him on

the basis of suspicion derived from speculative inferences.

To rely on the Maramara report as a basis for Salazar's dismissal would be most inequitous because the
bulk of the findings centered principally oh her friend's alleged thievery and anomalous transactions as
technical operations' support manager. Said report merely insinuated that in view of Salazar's special
relationship with Saldivar, Salazar might have had direct knowledge of Saldivar's questionable activities.
Direct evidence implicating private respondent is wanting from the records.

It is also worth emphasizing that the Maramara report came out after Saldivar had already resigned from
GMCR on May 31, 1984. Since Saldivar did not have the opportunity to refute management's findings, the
report remained obviously one-sided. Since the main evidence obtained by petitioner dealt principally on
the alleged culpability of Saldivar, without his having had a chance to voice his side in view of his prior
resignation, stringent examination should have been carried out to ascertain whether or not there existed
independent legal grounds to hold Salatar answerable as well and, thereby, justify her dismissal. Finding
none, from the records, we find her to have been unlawfully dismissed.

WHEREFORE, the assailed resolution of public respondent National Labor Relations Commission dated
December 29, 1987 is hereby AFFIRMED. Petitioner GMCR is ordered to REINSTATE private respondent
Imelda Salazar and to pay her backwages equivalent to her salary for a period of two (2) years only.

This decision is immediately executory.

SO ORDERED.

Paras, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr. and Nocon, JJ., concur.

Cruz, J., concurs in the result.

Gutierrez, Jr., Feliciano and Padilla, JJ., took no part.

Separate Opinions

MELENCIO-HERRERA, J., dissenting:

I believe there is just cause for dismissal per investigative findings. (See Decision, p. 2.)

Narvasa C.J., concurs

Separate Opinions

MELENCIO-HERRERA, J., dissenting:

I believe there is just cause for dismissal per investigative findings. (See Decision, p. 2.)

Narvasa C.J., concurs

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 109445 November 7, 1994

FELICITO BASBACIO, petitioner,

vs.
OFFICE OF THE SECRETARY, DEPARTMENT OF JUSTICE, FRANKLIN DRILON in his capacity as
Secretary of Justice, respondent.

Amparita S. Sta. Maria for petitioner.

MENDOZA, J.:

This case presents for determination the scope of the State's liability under Rep. Act No. 7309, which among
other things provides compensation for persons who are unjustly accused, convicted and imprisoned but
on appeal are acquitted and ordered released.

Petitioner Felicito Basbacio and his son-in-law, Wilfredo Balderrama, were convicted of frustrated murder
and of two counts of frustrated murder for the killing of Federico Boyon and the wounding of the latter's wife
Florida and his son Tirso, at Palo, Calanuga, Rapu-Rapu, Albay, on the night of June 26, 1988. The motive
for the killing was apparently a land dispute between the Boyons and petitioner. Petitioner and his son-in-
law were sentenced to imprisonment and ordered immediately detained after their bonds had been
cancelled.

Petitioner and his son-in-law appealed. Only petitioner's appeal proceeded to judgment, however, as the
appeal of the other accused was dismissed for failure to file his brief.

On June 22, 1992 the Court of Appeals rendered a decision acquitting petitioner on the ground that the
prosecution failed to prove conspiracy between him and his son-in-law. He had been pointed to by a
daughter of Federico Boyon as the companion of Balderrama when the latter barged into their hut and
without warning started shooting, but the appellate court ruled that because petitioner did nothing more,
petitioner's presence at the scene of the crime was insufficient to show conspiracy.

Based on his acquittal, petitioner filed a claim under Rep. Act No. 7309, sec. 3(a), which provides for the
payment of compensation to "any person who was unjustly accused, convicted, imprisoned but
subsequently released by virtue of a judgment of acquittal." 1 The claim was filed with the Board of Claims
of the Department of Justice, but the claim was denied on the ground that while petitioner's presence at the
scene of the killing was not sufficient to find him guilty beyond reasonable doubt, yet, considering that there
was bad blood between him and the deceased as a result of a land dispute and the fact that the convicted
murderer is his son-in-law, there was basis for finding that he was "probably guilty."

On appeal, respondent Secretary of Justice affirmed the Board's ruling. Said the Secretary of Justice in his
resolution dated March 11, 1993:

It is believed therefore that the phrase "any person . . . unjustly accused, convicted and imprisoned"
in Section 3(a) of R.A. No. 7309 refers to an individual who was wrongly accused and imprisoned
for a crime he did not commit, thereby making him "a victim of unjust imprisonment." In the instant
case, however, Claimant/Appellant cannot be deemed such a victim since a reading of the decision
 of his acquittal shows that his exculpation is not based on his innocence, but upon, in effect, a
finding of reasonable doubt.

Petitioner brought this petition for review on certiorari. Neither Rule 45 nor Rep. Act No. 7309, however,
provides for review by certiorari of the decisions of the Secretary of Justice. Nonetheless, in view of the
importance of the question tendered, the Court resolved to treat the petition as a special civil action for
certiorari under Rule 65.

Petitioner questions the basis of the respondent's ruling that to be able to recover under sec. 3(a) of the
law the claimant must on appeal be found to be innocent of the crimes of which he was convicted in the
trial court. Through counsel he contends that the language of sec. 3(a) is clear and does not call for
interpretation. The "mere fact that the claimant was imprisoned for a crime which he was subsequently
acquitted of is already unjust in itself," he contends. To deny his claim because he was not declared
innocent would be to say that his imprisonment for two years while his appeal was pending was justified.
Petitioner argues that there is only one requirement for conviction in criminal cases and that is proof beyond
reasonable doubt. If the prosecution fails to present such proof, the presumption that the accused is
innocent stands and, therefore, there is no reason for requiring that he be declared innocent of the crime
before he can recover compensation for his imprisonment.

Petitioner's contention has no merit. It would require that every time an accused is acquitted on appeal he
must be given compensation on the theory that he was "unjustly convicted" by the trial court. Such a reading
of sec. 3(a) is contrary to petitioner's professed canon of construction that when the language of the statute
is clear it should be given its natural meaning. It leaves out of the provision in question the qualifying word
"unjustly" so that the provision would simply read: "The following may file claims for compensation before
the Board: (a) any person who was accused, convicted, imprisoned but subsequently released by virtue of
a judgment of acquittal."

But sec. 3(a) requires that the claimant be "unjustly accused, convicted [and] imprisoned." The fact that his
conviction is reversed and the accused is acquitted is not itself proof that the previous conviction was
"unjust." An accused may be acquitted for a number of reasons and his conviction by the trial court may,
for any of these reasons, be set aside. For example, he may be acquitted not because he is innocent of the
crime charged but because of reasonable doubt, in which case he may be found civilly liable to the
complainant, because while the evidence against him does not satisfy the quantum of proof required for
conviction, it may nonetheless be sufficient to sustain a civil action for damages. 2 In one case the accused,
an alien, was acquitted of statutory rape with homicide because of doubt as to the ages of the offended
parties who consented to have sex with him. Nonetheless the accused was ordered to pay moral and
exemplary damages and ordered deported.3 In such a case to pay the accused compensation for having
been "unjustly convicted" by the trial court would be utterly inconsistent with his liability to the complainant.
Yet to follow petitioner's theory such an accused would be entitled to compensation under sec. 3(a).

The truth is that the presumption of innocence has never been intended as evidence of innocence of the
accused but only to shift the burden of proof that he is guilty to the prosecution. If "accusation is not
synonymous with guilt,"4 so is the presumption of innocence not a proof thereof. It is one thing to say that
the accused is presumed to be innocent in order to place on the prosecution the burden of proving beyond
reasonable doubt that the accused is guilty. It is quite another thing to say that he is innocent and if he is
convicted that he has been "unjustly convicted." As this Court held in a case:

Though we are acquitting the appellant for the crime of rape with homicide, we emphasize that we
are not ruling that he is innocent or blameless. It is only the constitutional presumption of innocence
and the failure of the prosecution to build an airtight case for conviction which saved him, not that
the facts of unlawful conduct do not exist.5

To say then that an accused has been "unjustly convicted" has to do with the manner of his conviction
rather than with his innocence. An accused may on appeal be acquitted because he did not commit the
crime, but that does
not necessarily mean that he is entitled to compensation for having been the victim of an "unjust conviction."
If his conviction was due to an error in the appreciation of the evidence the conviction while erroneous is
not unjust. That is why it is not, on the other hand, correct to say as does respondent, that under the law
liability for compensation depends entirely on the innocence of the accused.

The phrase "unjustly convicted" has the same meaning as "knowingly rendering an unjust judgment" in art.
204 of the Revised Penal Code. What this Court held in In re Rafael C. Climaco 6 applies:

In order that a judge may be held liable for knowingly rendering an unjust judgment, it must be
shown beyond doubt that the judgment is unjust as it is contrary to law or is not supported by the
evidence, and the same was made with conscious and deliberate intent to do an injustice . . . .

To hold a judge liable for the rendition of manifestly unjust judgment by reason of inexcusable negligence
or ignorance, it must be shown, according to Groizard, that although he has acted without malice, he failed
to observe in the performance of his duty, that diligence, prudence and care which the law is entitled to
exact in the rendering of any public service. Negligence and ignorance are inexcusable if they imply a
manifest injustice which cannot be explained by a reasonable interpretation. Inexcusable mistake only
exists in the legal concept when it implies a manifest injustice, that is to say, such injustice which cannot
be explained by a reasonable interpretation, even though there is a misunderstanding or error of the law
applied, yet in the contrary it results, logically and reasonably, and in a very clear and indisputable manner,
in the notorious violation of the legal precept.

Indeed, sec. 3(a) does not refer solely to an unjust conviction as a result of which the accused is unjustly
imprisoned, but, in addition, to an unjust accusation. The accused must have been "unjustly accused, in
consequence of which he is unjustly convicted and then imprisoned. It is important to note this because if
from its inception the prosecution of the accused has been wrongful, his conviction by the court is, in all
probability, also wrongful. Conversely, if the prosecution is not malicious any conviction even though based
on less than the required quantum of proof in criminal cases may be erroneous but not necessarily unjust.

The reason is that under Rule 112, sec. 4, the question for the prosecutor in filing a case in court is not
whether the accused is guilty beyond reasonable doubt but only whether "there is reasonable ground to
believe that a crime has been committed and the accused is probably guilty thereof." Hence, an accusation
which is based on "probable guilt" is not an unjust accusation and a conviction based on such degree of
proof is not necessarily an unjust judgment but only an erroneous one. The remedy for such error is appeal.

In the case at bar there is absolutely no evidence to show that petitioner's conviction by the trial court was
wrongful or that it was the product of malice or gross ignorance or gross negligence. To the contrary, the
court had reason to believe that petitioner and his co-accused were in league, because petitioner is the
father-in-law of Wilfredo Balderrama and it was petitioner who bore the victim a grudge because of a land
dispute. Not only that. Petitioner and his coaccused arrived together in the hut of the victims and forced
their way into it.

The Court of Appeals ruled there was no conspiracy only because there was no proof that he did or say
anything on the occasion. Said the appellate court.

Both eyewitness testimonies fail to show the appellant Felicito Basbacio to have committed any act
at all. Both fail to show Felicito Basbacio as having said anything at all. Both fail to show Felicito
Basbacio as having committed anything in furtherance of a conspiracy to commit the crimes
charged against the defendants. It seems to be a frail and flimsy basis on which to conclude that
conspiracy existed between actual killer Wilfredo Balderrama and Felicito Basbacio to commit
murder and two frustrated murders on that night of June 26, 1988. It may be asked: where was the
coming together of the two defendants to an agreement to commit the crimes of murder and
frustrated murder on two counts? Where was Basbacio's contribution to the commission of the said
 crimes? Basbacio was — as the record shows — nothing but part of the dark shadows of that night.
...

One may take issue with this ruling because precisely conspiracy may be shown by concert of action and
other circumstances. Why was petitioner with his son-in-law? Why did they apparently flee together? And
what about the fact that there was bad blood between petitioner and the victim Federico Boyon? These
questions may no longer be passed upon in view of the acquittal of petitioner but they are relevant in
evaluating his claim that he had been unjustly accused, convicted and imprisoned before he was released
because of his acquittal on appeal. We hold that in view of these circumstances respondent Secretary of
Justice and the Board of Claims did not commit a grave abuse of its discretion in disallowing petitioner's
claim for compensation under Rep. Act No. 7309.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug and
Kapunan, JJ., concur.

Feliciano, J., is on leave.

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 109835 November 22, 1993

JMM PROMOTIONS & MANAGEMENT, INC., petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION and ULPIANO L. DE LOS SANTOS, respondent.

Don P. Porciuncula for petitioner.

Eulogio Nones, Jr. for private respondent.

CRUZ, J.:

The sole issue submitted in this case is the validity of the order of respondent National Labor Relations
Commission dated October 30, 1992, dismissing the petitioner's appeal from a decision of the Philippine
Overseas Employment Administration on the ground of failure to post the required appeal bond.1

The respondent cited the second paragraph of Article 223 of the Labor Code as amended, providing that:

In the case of a judgment involving a monetary award, an appeal by the employer may be perfected
only upon the posting of a cash or surety bond issued by a reputable bonding company duly
accredited by the Commission in an amount equivalent to the monetary award in the judgment
appealed from.

and Rule VI, Section 6 of the new Rules of Procedure of the NLRC, as amended, reading as follows:

Sec. 6. Bond — In case the decision of a Labor Arbiter involves a monetary award, an appeal by
the employer shall be perfected only upon the posting of a cash or surety bond issued by a
reputable bonding company duly accredited by the Commission or the Supreme Court in an amount
equivalent to the monetary award.

The petitioner contends that the NLRC committed grave abuse of discretion in applying these rules to
decisions rendered by the POEA. It insists that the appeal bond is not necessary in the case of licensed
recruiters for overseas employment because they are already required under Section 4, Rule II, Book II of
the POEA Rules not only to pay a license fee of P30,000 but also to post a cash bond of P100,000 and a
surety bond of P50,000, thus:

Upon approval of the application, the applicant shall pay a license fee of P30,000. It shall also post
a cash bond of P100,000 and surety bond of P50,000 from a bonding company acceptable to the
Administration and duly accredited by the Insurance Commission. The bonds shall answer for all
valid and legal claims arising from violations of the conditions for the grant and use of the license,
and/or accreditation and contracts of employment. The bonds shall likewise guarantee compliance
with the provisions of the Code and its implementing rules and regulations relating to recruitment
and placement, the Rules of the Administration and relevant issuances of the Department and all
liabilities which the Administration may impose. The surety bonds shall include the condition that
the notice to the principal is notice to the surety and that any judgment against the principal in
connection with matters falling under POEA's jurisdiction shall be binding and conclusive on the
 surety. The surety bonds shall be co-terminus with the validity period of license. (Emphasis
supplied)

In addition, the petitioner claims it has placed in escrow the sum of P200,000 with the Philippine National
Bank in compliance with Section 17, Rule II, Book II of the same Rule, "to primarily answer for valid and
legal claims of recruited workers as a result of recruitment violations or money claims."

Required to comment, the Solicitor General sustains the appeal bond requirement but suggest that the
rules cited by the NLRC are applicable only to decisions of the Labor Arbiters and not of the POEA. Appeals
from decisions of the POEA, he says, are governed by the following provisions of Rule V, Book VII of the
POEA Rules:

Sec. 5. Requisites for Perfection of Appeal. The appeal shall be filed within the reglementary period
as provided in Section 1 of this Rule; shall be under oath with proof of payment of the required
appeal fee and the posting of a cash or surety bond as provided in Section 6 of this Rule; shall be
accompanied by a memorandum of appeal which shall state the grounds relied upon and the
arguments in support thereof; the relief prayed for; and a statement of the date when the appellant
received the appealed decision and/or award and proof of service on the other party of such appeal.

A mere notice of appeal without complying with the other requisites aforestated shall not stop the running
of the period for perfecting an appeal.

Sec. 6. Bond. In case the decision of the Administration involves a monetary award, an appeal by the
employer shall be perfected only upon the posting of a cash or surety bond issued by a reputable bonding
company duly accredited by the Commission in an amount equivalent to the monetary award. (Emphasis
supplied)

The question is, having posted the total bond of P150,000 and placed in escrow the amount of P200,000
as required by the POEA Rules, was the petitioner still required to post an appeal bond to perfect its appeal
from a decision of the POEA to the NLRC?

It was.

The POEA Rules are clear. A reading thereof readily shows that in addition to the cash and surety bonds
and the escrow money, an appeal bond in an amount equivalent to the monetary award is required to
perfect an appeal from a decision of the POEA. Obviously, the appeal bond is intended to further insure the
payment of the monetary award in favor of the employee if it is eventually affirmed on appeal to the NLRC.

It is true that the cash and surety bonds and the money placed in escrow are supposed to guarantee the
payment of all valid and legal claims against the employer, but these claims are not limited to monetary
awards to employees whose contracts of employment have been violated. The POEA can go against these
bonds also for violations by the recruiter of the conditions of its license, the provisions of the Labor Code
and its implementing rules, E.O. 247 (reorganizing POEA) and the POEA Rules, as well as the settlement
of other liabilities the recruiter may incur.

As for the escrow agreement, it was presumably intended to provide for a standing fund, as it were, to be
used only as a last resort and not to be reduced with the enforcement against it of every claim of recruited
workers that may be adjudged against the employer. This amount may not even be enough to cover such
claims and, even if it could initially, may eventually be exhausted after satisfying other subsequent claims.

As it happens, the decision sought to be appealed grants a monetary award of about P170,000 to the
dismissed employee, the herein private respondent. The standby guarantees required by the POEA Rules
would be depleted if this award were to be enforced not against the appeal bond but against the bonds and
the escrow money, making them inadequate for the satisfaction of the other obligations the recruiter may
incur.
Indeed, it is possible for the monetary award in favor of the employee to exceed the amount of P350,000,
which is the sum of the bonds and escrow money required of the recruiter.

It is true that these standby guarantees are not imposed on local employers, as the petitioner observes, but
there is a simple explanation for this distinction. Overseas recruiters are subject to more stringent
requirement because of the special risks to which our workers abroad are subjected by their foreign
employers, against whom there is usually no direct or effective recourse. The overseas recruiter is solidarily
liable with a foreign employer. The bonds and the escrow money are intended to insure more care on the
part of the local agent in its choice of the foreign principal to whom our overseas workers are to be sent.

It is a principle of legal hermeneutics that in interpreting a statute (or a set of rules as in this case), care
should be taken that every part thereof be given effect, on the theory that it was enacted as an integrated
measure and not as a hodge-podge of conflicting provisions. Ut res magis valeat quam pereat. 2 Under the
petitioner's interpretation, the appeal bond required by Section 6 of the aforementioned POEA Rule should
be disregarded because of the earlier bonds and escrow money it has posted. The petitioner would in effect
nullify Section 6 as a superfluity but we do not see any such redundancy; on the contrary, we find that
Section 6 complements Section 4 and Section 17. The rule is that a construction that would render a
provision inoperative should be avoided; instead, apparently inconsistent provisions should be reconciled
whenever possible as parts of a coordinated and harmonious whole.

Accordingly, we hold that in addition to the monetary obligations of the overseas recruiter prescribed in
Section 4, Rule II, Book II of the POEA Rules and the escrow agreement under Section 17 of the same
Rule, it is necessary to post the appeal bond required under Section 6, Rule V, Book VII of the POEA Rules,
as a condition for perfecting an appeal from a decision of the POEA.

Every intendment of the law must be interpreted in favor of the working class, conformably to the mandate
of the Constitution. By sustaining rather than annulling the appeal bond as a further protection to the
claimant employee, this Court affirms once again its commitment to the interest of labor.

WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.

Davide and Quiason, JJ., concur.

Bellosillo, J, is on leave.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 191894 July 15, 2015

DANILO A. DUNCANO, Petitioner,

vs.
HON. SANDIGANBAYAN (2nd DIVISION), and HON. OFFICE OF THE SPECIAL PROSECUTOR,
Respondents.

DECISION

PERALTA, J.:

This petition for certiorari under Rule 65 of the Rules of Court (Rules) with prayer for issuance of preliminary
injunction and/or temporary restraining order seeks to reverse and set aside the August 18, 2009
Resolution1 and February 8, 2010 Order2 of respondent Sandiganbayan Second Division in Criminal Case
No. SB-09-CRM-0080, which denied petitioner's Motion to Dismiss on the ground of la9k of jurisdiction.

The facts are plain and undisputed.

Petitioner Danilo A. Duncano is, at the time material to the case, the Regional Director of the Bureau of
Internal Revenue (BIR) with Salary Grade 26 as classified under Republic Act (R.A.) No. 6758.3 On March
24, 2009,4 the Office of the Special Prosecutor (OSP), Office of the Ombudsman, filed a criminal case
against him for violation of Section 8, in relation to Section 11 of R.A. No. 6713, 5 allegedly committed as
follows:

That on or about April 15, 2003, or sometime prior or subsequent thereto, in Quezon City, Philippines, and
within the jurisdiction of this Honorable Court, accused DANILODUNCANO y ACIDO, a high ranking public
officer, being the Regional Director of Revenue Region No. 7, of the Bureau of Internal Revenue, Quezon
City, and as such is under an obligation to accomplish and submit declarations under oath of his assets,
liabilities and net worth and financial and business interests, did then and there, wilfully, unlawfully and
criminally fail to disclose in his Sworn Statement of Assets and Liabilities and Networth (SALN) for the year
2002, his financial and business interests/connection in Documail Provides Corporation and Don Plus
Trading of which he and his family are the registered owners thereof, and the 1993 Nissan Patrol motor
vehicle registered in the name of his son VINCENT LOUIS P. DUNCANO which are part of his assets, to
the damage and prejudice of public interest.

CONTRARY TO LAW.6

Prior to his arraignment, petitioner filed a Motion to Dismiss With Prayer to Defer the Issuance of Warrant
of Arrest7 before respondent Sandiganbayan Second Division. As the OSP alleged, he admitted that he is
a Regional Director with Salary Grade 26. Citing Inding v. Sandiganbayan 8 and Serana v. Sandiganbayan,
et al.,9 he asserted that under Presidential Decree (P.D.) No. 1606, as amended by Section 4 (A) (1) of R.A
No. 8249,10 the Sandiganbayan has no jurisdiction to try and hear the case because he is an official of the
executive branch occupying the position of a Regional Director but with a compensation that is classified
as below Salary Grade 27.

In its Opposition,11 the OSP argued that a reading of Section 4 (A) (1) (a) to (g) of the subject law would
clearly show that the qualification as to Salary Grade 27 and higher applies only to officials of the executive
branch other than the Regional Director and those specifically enumerated. This is so since the term
"Regional Director" and "higher" are separated by the conjunction "and," which signifies that these two
positions are different, apart and distinct, words but are conjoined together "relating one to the other" to
give effect to the purpose of the law. The fact that the position of Regional Director was specifically
mentioned without indication as to its salary grade signifies the lawmakers’ intention that officials occupying
such position, regardless of salary grade, fall within the original and exclusive jurisdiction of the
Sandiganbayan. This issue, it is claimed, was already resolved in Inding. Finally, the OSP contended that
the filing of the motion to dismiss is premature considering that the Sandiganbayan has yet to acquire
jurisdiction over the person of the accused.

Still not to be outdone, petitioner invoked the applicability of Cuyco v. Sandiganbayan 12 and Organo v.
Sandiganbayan13 in his rejoinder.

On August 18, 2009, the Sandiganbayan Second Division promulgated its Resolution, disposing:
WHEREFORE, in the light of the foregoing, the Court hereby DENIES the instant Motion to Dismiss for
being devoid of merit. Let a Warrant of Arrest be therefore issued against the accused.

SO ORDERED.14

The respondent court ruled that the position of Regional Director is one of those exceptions where the
Sandiganbayan has jurisdiction even if such position is not Salary Grade 27. It was opined that Section 4
(A) (1) of R.A No. 8249 unequivocally provides that respondent court has jurisdiction over officials of the
executive branch of the government occupying the position of regional director and higher, otherwise
classified as Salary Grade 27 and higher, of R.A. No. 6758, including those officials who are expressly
enumerated in subparagraphs (a) to (g). In support of the ruling, this Court’s pronouncements in Indingand
Binay v. Sandiganbayan15 were cited.

Petitioner filed a Motion for Reconsideration, but it was denied;16 Hence, this petition.

Instead of issuing a temporary restraining order or writ of preliminary injunction, the Court required
respondents to file a comment on the petition without necessarily giving due course thereto. 17 Upon
compliance of the OSP, a Rejoinder (supposedly a Reply) was filed by petitioner.

At the heart of the controversy is the determination of whether, according to P.D. No. 1606, as amended
by Section 4 (A) (1) of R.A No. 8249, only Regional Directors with Salary Grade of 27 and higher, as
classified under R.A. No. 6758, fall within the exclusive jurisdiction of the Sandiganbayan. Arguing that he
is not included among the public officials specifically enumerated in Section 4 (A) (1) (a) to (g) of the law
and heavily relying as well on Cuyco, petitioner insists that respondent court lacks jurisdiction over him,
who is merely a Regional Director with Salary Grade 26. On the contrary, the OSP maintains that a Regional
Director, irrespective of salary grade, falls within the exclusive original jurisdiction of the Sandiganbayan.
We find merit in the petition.

The creation of the Sandiganbayan was mandated by Section 5, Article XIII of the 1973 Constitution. 18 By
virtue of the powers vested in him by the Constitution and pursuant to Proclamation No. 1081, dated
September 21, 1972, former President Ferdinand E. Marcos issued P.D. No. 1486. 19 The decree was later
amended by P.D. No. 1606,20 Section 20 of Batas Pambansa Blg. 129,21 P.D. No. 1860,22 and P.D. No.
1861.23

With the advent of the 1987 Constitution, the special court was retained as provided for in Section 4, Article
XI thereof.24 Aside from Executive Order Nos. 1425 and 14-a,26 and R.A. 7080,27 which expanded the
jurisdiction of the Sandiganbayan, P.D. No. 1606 was further modified by R.A. No. 7975,28 R.A. No. 8249,29
and just this year, R.A. No. 10660.30

For the purpose of this case, the relevant provision is Section 4 of R.A. No. 8249, which states: SEC. 4.
Section 4 of the same decree is hereby further amended to read as follows:

"SEC. 4. Jurisdiction.– The Sandiganbayan shall exercise exclusive original jurisdiction in all cases
involving:
"A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal
Code, where one or more of the accused are officials occupying the following positions in the government,
whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

"(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise
classified as Grade ‘27’ and higher, of the Compensation and Position Classification Act of 1989 (Republic
Act No. 6758), specifically including:

"(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial
treasurers, assessors, engineers, and other provincial department heads;

"(b) City mayor, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors,
engineers, and other city department heads;

"(c) Officials of the diplomatic service occupying the position of consul and higher;

"(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;

"(e) Officers of the Philippine National Police while occupying the position of provincial director and those
holding the rank of senior superintendent or higher;

"(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the
Ombudsman and special prosecutor;

"(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state

universities or educational institutions or foundations.

"(2) Members of Congress and officials thereof classified as Grade ‘27’ and up under the Compensation
and Position Classification Act of 1989;

"(3) Members of the judiciary without prejudice to the provisions of the Constitution;

"(4) Chairmen and members of Constitutional Commission, without prejudice to the provisions of the
Constitution; and

"(5) All other national and local officials classified as Grade ‘27’ and higher under the Compensation and
Position Classification Act of 1989.

"B. Other offenses or felonies whether simple or complexed with other crimes committed by the public
officials and employees mentioned in subsection a of this section in relation to their office.

"C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-
A, issued in 1986.

x x x"

Based on the afore-quoted, those that fall within the original jurisdiction of the Sandiganbayan are: (1)
officials of the executive branch with Salary Grade 27 or higher, and (2) officials specifically enumerated in
Section 4 (A) (1) (a) to (g), regardless of their salary grades. 31 While the first part of Section 4 (A) covers
only officials of the executive branch with Salary Grade 27 and higher, its second part specifically includes
other executive officials whose positions may not be of Salary Grade 27 and higher but who are by express
provision of law placed under the jurisdiction of the Sandiganbayan. 32

That the phrase "otherwise classified as Grade ‘27’ and higher" qualifies "regional director and higher" is
apparent from the Sponsorship Speech of Senator Raul S. Roco on Senate Bill Nos. 1353and 844, which
eventually became R.A. Nos. 7975 and 8249, respectively:
As proposed by the Committee, the Sandiganbayan shall exercise original jurisdiction over the cases
assigned to it only in instances where one or more of the principal accused are officials occupying the
positions of regional director and higher or are otherwise classified as Grade 27 and higher by the
Compensation and Position Classification Act of 1989, whether in a permanent, acting or interim capacity
at the time of the commission of the offense. The jurisdiction, therefore, refers to a certain grade upwards,
which shall remain with the Sandiganbayan. 33 (Emphasis supplied)

To speed up trial in the Sandiganbayan, Republic Act No. 7975 was enacted for that Court to concentrate
on the "larger fish" and leave the "small fry" to the lower courts. This law became effective on May 6, 1995
and it provided a two-pronged solution to the clogging of the dockets of that court, to wit:

It divested the Sandiganbayan of jurisdiction over public officials whose salary grades were at Grade "26"
or lower, devolving thereby these cases to the lower courts, and retaining the jurisdiction of the
Sandiganbayan only over public officials whose salary grades were at Grade "27" or higher and over other
specific public officials holding important positions in government regardless of salary grade; x x x 34
(Emphasis supplied)

The legislative intent is to allow the Sandiganbayan to devote its time and expertise to big-time cases
involving the so-called "big fishes" in the government rather than those accused who are of limited means
who stand trial for "petty crimes," the so-called "small fry," which, in turn, helps the court decongest its
dockets.35

Yet, those that are classified as Salary Grade 26 and below may still fall within the jurisdiction of the
Sandiganbayan, provided that they hold the positions enumerated by the law.36 In this category, it is the
position held, not the salary grade, which determines the jurisdiction of the Sandiganbayan. 37 The specific
inclusion constitutes an exception to the general qualification relating to "officials of the executive branch
occupying the positions of regional director and higher, otherwise classified as Grade ‘27’ and higher, of
the Compensation and Position Classification Act of 1989." 38 As ruled in Inding:

Following this disquisition, the paragraph of Section 4 which provides that if the accused is occupying a
position lower than SG 27, the proper trial court has jurisdiction, can only be properly interpreted as applying
to those cases where the principal accused is occupying a position lower than SG 27 and not among those
specifically included in the enumeration in Section 4 a. (1) (a) to (g). Stated otherwise, except for those
officials specifically included in Section 4 a. (1) (a) to (g), regardless of their salary grades, over whom the
Sandiganbayan has jurisdiction, all other public officials below SG 27 shall be under the jurisdiction of the
proper trial courts "where none of the principal accused are occupying positions corresponding to SG 27 or
higher." By this construction, the entire Section 4 is given effect. The cardinal rule, after all, in statutory
construction is that the particular words, clauses and phrases should not be studied as detached and
isolated expressions, but the whole and every part of the statute must be considered in fixing the meaning
of any of its parts and in order to produce a harmonious whole. And courts should adopt a construction that
will give effect to every part of a statute, if at all possible. Ut magis valeat quam pereat or that construction
is to be sought which gives effect to the whole of the statute – its every word.39

Thus, to cite a few, We have held that a member of the Sangguniang Panlungsod,40 a department manager
of the Philippine Health Insurance Corporation (Philhealth), 41 a student regent of the University of the
Philippines,42 and a Head of the Legal Department and Chief of the Documentation with corresponding
ranks of Vice-Presidents and Assistant Vice-President of the Armed Forces of the Philippines Retirement
and Separation Benefits System (AFP-RSBS)43 fall within the jurisdiction of the Sandiganbayan.

Petitioner is not an executive official with Salary Grade 27 or higher. Neither does he hold any position
particularly enumerated in Section 4 (A) (1) (a) to (g). As he correctly argues, his case is, in fact, on all fours
with Cuyco.1avvphi1 Therein, the accused was the Regional Director of the Land Transportation Office,
Region IX, Zamboanga City, but at the time of the commission of the crime in 1992, his position was
classified as Director II with Salary Grade 26.44 It was opined: Petitioner contends that at the time of the
commission of the offense in 1992, he was occupying the position of Director II, Salary Grade 26, hence,
jurisdiction over the cases falls with the Regional Trial Court.

We sustain petitioner's contention.

The Sandiganbayan has no jurisdiction over violations of Section 3(a) and (e), Republic Act No. 3019, as
amended, unless committed by public officials and employees occupying positions of regional director and
higher with Salary Grade "27" or higher, under the Compensation and Position Classification Act of 1989
(Republic Act No. 6758) in relation to their office.

In ruling in favor of its jurisdiction, even though petitioner admittedly occupied the position of Director II with
Salary Grade "26" under the Compensation and Position Classification Act of 1989 (Republic Act No. 6758),
the Sandiganbayan incurred in serious error of jurisdiction, and acted with grave abuse of discretion
amounting to lack of jurisdiction in suspending petitioner from office, entitling petitioner to the reliefs prayed
for.45

In the same way, a certification issued by the OIC – Assistant Chief, Personnel Division of the BIR shows
that, although petitioner is a Regional Director of the BIR, his position is classified as Director II with Salary
Grade 26.46

There is no merit in the OSP’s allegation that the petition was prematurely filed on the ground that
respondent court has not yet acquired jurisdiction over the person of petitioner. Records disclose that when
a warrant of arrest was issued by respondent court, petitioner voluntarily surrendered and posted a cash
bond on September 17, 2009.Also, he was arraigned on April 14, 2010,prior to the filing of the petition on
April 30, 2010.

WHEREFORE, the foregoing considered, the instant petition for certiorari is GRANTED. The August 18,
2009 Resolution and February 8, 2010 Order of the Sandiganbayan Second Division, which denied
petitioner's Motion to Dismiss on the ground of lack of jurisdiction, are REVERSED AND SET ASIDE.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO* MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice
JOSE PORTUGAL PEREZ**
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION
Pursuant to Section 13, Article VIII of the, Constitution and the Division Chairperson's Attestation, I certify
that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court's Division.

MARIA LOURDES P.A. SERENO

Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 104712 May 6, 1992

MANUEL T. DE GUIA, in his capacity as Councilor of the Municipality of Parañaque, Metro Manila,
petitioner,
vs.
HON. COMMISSION ON ELECTIONS, respondent.

BELLOSILLO, J.:

This is a petition for certiorari and prohibition assailing the validity and the enforcement by respondent
Commission on Elections (COMELEC) of its RESOLUTION NO. 2313, adopting rules and guidelines in the
apportionment, by district, of the number of elective members of the Sangguniang Panlalawigan in
provinces with only one (1) legislative district and the Sangguniang Bayan of municipalities in the Metro
Manila Area for the preparation of the Project of District Apportionment by the Provincial Election
Supervisors and Election Registrars (Annex "A", Petition), RESOLUTION NO. 2379, approving the Project
of District Apportionment submitted pursuant to Resolution No. 2313 (Annex "B", Petition), and
RESOLUTION UND. 92-010 holding that pars. (a), (b) and (c), and the first sentence of par. (d), all of Sec.
3, R.A. 7166, apply to the May 11, 1992 elections (Annex "C", Petition).

Petitioner Manuel T. De Guia is an incumbent Member of the Sangguniang Bayan of the Municipality of
Parañaque, Metro Manila, having been elected in the January 1988 local elections. He prays, more
particularly, for reversal of the position of respondent insofar as it affects the municipality of Parañaque and
all the other municipalities in the Metro Manila Area. He claims that the second proviso of par. (c), Sec. 3
of R.A. 7166, which requires the apportionment into districts of said municipalities does not specify when
the members of their Sangguniang Bayan will be elected by district. He would consequently lean on par.
(d) of Sec. 3, which immediately succeeds par. (c), to support his view that the elected members of these
municipalities mentioned in par. (c) should continue to be elected at large in the May 11, 1992 elections.

Paragraph (d) states that "[F]or purposes of the regular elections on May 11, 1992, elective members of
the Sangguniang Panlunsod and Sangguniang Bayan shall be elected at large in accordance with existing
laws. However, beginning with the regular elections in 1995, they shall be elected by district." Petitioner
therefore insists that the elected members of the Sangguniang Bayan of Parañaque fall under this category
so that they should continue to be elected at large until the 1995 regular elections.

Before addressing the crux of the controversy, the Court observes that petitioner does not allege that he is
running for reelection, much less, that he is prejudiced by the election, by district, in Parañaque. As such,
he does
not appear to have a locus standi, a standing in law, personal or substantial interest. 1 He does not also
allege any legal right that has been violated by respondent. If for this alone, petitioner does not appear to
have any cause of action.

However, considering the importance of the issue involved, concerning as it does the political exercise of
qualified voters affected by the apportionment, and petitioner alleging abuse of discretion and violation of
the Constitution by respondent, We resolve to brush aside the question of procedural infirmity, even as We
perceive the petition to be one of declaratory relief. We so held similarly through Mr. Justice Edgardo L.
Paras in Osmeña v. Commission on Elections. 2

Now on the meat of the dispute.

On November 18, 1991, Congress passed R.A. 7166, signed into law by the President on November 26,
1991. It is "An Act Providing for Synchronized National and Local Elections and for Electoral Reforms,
Authorizing Appropriations Therefor, and for Other Purposes." At issue in this case is the proper
interpretation of Sec. 3 thereof which provides:

Sec. 3. Elections of Members of the Sangguniang Panlalawigan, Sangguniang Panlungsod and

Sangguniang Bayan. — The elective members of the Sangguniang Panlalawigan, Sangguniang
Panlungsod and Sangguniang Bayan shall be elected as follows:

(a) For provinces with two (2) or more legislative districts, the elective members of the Sangguniang
Panlalawigan shall be elected by legislative districts . . .

(b) For provinces with only one (1) legislative district, the Commission shall divide them into two (2) districts
for purposes of electing the members of the Sangguniang Panlalawigan . . .

(c) The number and election of elective members of the Sangguniang Panlungsod and Sangguniang Bayan
in the Metro Manila Area, City of Cebu, City of Davao and any other city with two (2) or more legislative
districts shall continue to be governed by the provisions of Sections 2 and 3 of Republic Act No. 6636 . . .
Provided, further, That, the Commission shall divide each of the municipalities in Metro Manila Area into
two (2) districts by barangay for purposes of representation in the Sangguniang Bayan
. . . . and,

(d) For purposes of the regular elections on May 11, 1992, elective members of the Sangguniang
Panlungsod and Sangguniang Bayan shall be elected at large in accordance with existing laws. However,
beginning with the regular elections in 1995, they shall be elected by district . . . .

On November 20, 1991, respondent COMELEC, invoking authority of the Constitution, the Omnibus
Election Code, R.A. 6636, R.A. 6646 and R.A. 7166, 3 issued Resolution No. 2313 and the subsequent
resolutions in question.

On February 20, 1992, in view of the perceived ambiguity in the meaning of par. (d), particularly in relation
to par. (c), Sec. 3, R.A. 7166, petitioner filed with COMELEC a Motion for Clarification of its Resolution No.
2313 inquiring whether the members of the Sangguniang Bayan of Parañaque and the other municipalities
of Metro Manila enumerated therein, which are all single-district municipalities, would be elected by district
in May 11, 1992 or in the 1995 regular elections.

Meanwhile, on March 3, 1992 COMELEC issued Resolution No. 2379 approving the guidelines submitted
by the Provincial Election Supervisors and Municipal Election Registrars concerned pursuant to Resolution
No. 2313, and stating therein its purpose in recommending to Congress the districting/apportionment of
Sangguniang Panlungsod and Sangguniang Bayan seats, i.e., to reduce the number of candidates to be
voted for in the May 11, 1992 synchronized elections. In this Project of Apportionment, Parañaque together
with the other twelve (12) municipalities in the Metro Manila Area was divided into two (2) districts with six
(6) elective councilors for each district.

On March 10, 1992, COMELEC resolved petitioner's Motion for Clarification by interpreting Sec. 3, R.A.
7166, to mean that the election of elective members of the Sangguniang Bayan, by district, of the thirteen
(13) municipalities in the Metro Manila Area shall apply in the May 11, 1992 elections (Resolution UND. 92-
010, prom. March 10, 1992). Petitioner says that he received copy of Resolution UND. 92-010 on March
13, 1992.
On April 7, 1992, apparently not satisfied with this third Resolution of COMELEC, petitioner filed the instant
petition asserting that under par. (d), Sec. 3 of R.A. 7166 the elective members of the Sangguniang
Panlungsod and the Sangguniang Bayan, for purposes of the May 11, 1992 regular elections, shall be
elected at large in accordance with existing laws. He would include in this class of sanggunian members to
be elected at large those of the municipality of Parañaque.

Petitioner therefore imputes grave abuse of discretion to COMELEC in promulgating Resolution No. 2313,
Resolution No. 2379 and Resolution UND. 92-010 which clarifies, contrary to his view, that the district
apportionment of the municipalities in the Metro Manila Area is applicable to the May 11, 1992 regular
elections.

We have carefully examined pars. (a), (b), (c) and (d) of Sec. 3, R.A. 7166, and its precursor bills on
synchronized elections, Senate Bill No. 1861 and House Bill No. 34811, and We realize the web of
confusion generated by the seeming abstruseness in the language of the law. Some framers of the law
were even fazed at the empirical implications of some of its provisions, particularly Sec. 3 thereof, and they
admitted in fact that said provisions were susceptible of varied interpretations, as borne by the sponsorship
and explanatory speeches now spread in the Journals of Congress. Hence, We can understand why
petitioner would interpret Sec. 3 as he would. But if we pursue his course, we may conclude in absurdity
because then there would have been no reason for R.A. 7166 to single out the single-district provinces
referred to in par. (b), and the municipalities in the Metro Manila Area mentioned in the second proviso of
par. (c), to be apportioned at once into two (2) districts each if the members of their respective sanggunian
after all would still be elected at large as they were in the 1988 elections.

No law is ever enacted that is intended to be meaningless, much less inutile. We must therefore, as far as
we can, divine its meaning, its significance, its reason for being. As it has oft been held, the key to open the
door to what the legislature intended which is vaguely expressed in the language of a statute is its purpose
or the reason which induced it to enact the statute. If the statute needs construction, as it does in the present
case, the most dominant in that process is the purpose of the act. 4 Statutes should be construed in the
light of the object to be achieved and the evil or mischief to be suppressed, 5 and they should be given
such construction as will advance the object, suppress the mischief, and secure the benefits intended. 6 A
construction should be rejected that gives to the language used in a statute a meaning that does not
accomplish the purpose for which the statute was enacted, and that tends to defeat the ends which are
sought to be attained by the enactment. 7

The reason for the promulgation of R.A. 7166 is shown in the explanatory note of Senate Bill No. 1861
which states in part:

This bill proposes to set the national and local elections for May 11, 1992, and provide for the
necessary implementing details. It also endorses reforms and measures to ensure the conduct of
free, orderly, honest, peaceful and credible elections. Specifically, it seeks to: (1) Reduce the
number of positions to be voted for by providing therein that the members of the Sangguniang
Panlalawigan, Sangguniang Panlungsod and Sangguniang Bayan be elected not at large, but by
district . . . .

That respondent COMELEC is cognizant of this legislative intent of R.A. 7166 is reflected in the
"WHEREAS" clauses constituting the preamble to Resolution No. 2379. Thus —

WHEREAS, the Commission on Elections, in order to reduce the number of candidates to be voted
for in the May 11, 1992 synchronized elections recommended, among others, to the Congress of
the Philippines, the districting/apportionment of sangguniang panlungsod and sangguniang bayan
seats;

WHEREAS, the Congress of the Philippines passed Republic Act 7166, and approved by the President of
the Philippines on November 26, 1991, adopting among others, the recommendation of the Commission
on Elections aforestated;
WHEREAS, pursuant to, and in implementation of Republic Act 7166, particularly Section 3 thereof, the
Commission promulgated Resolution No. 2313, directing the Provincial Election Supervisors and Election
Registrars concerned to submit, after consultation, public hearings, and consensus-taking with the different
sectors in the community, the Project of District Apportionment of single legislative-district provinces and
municipalities in the Metro Manila area;

WHEREAS, the established criteria/guidelines in the determination of the district apportionment are as
follows: a. compactness, contiguity and adjacentness of territory; b. apportionment shall be based on the
1990 census of population; c. no municipality, in the case of provinces, and no barangay, in the case of
cities and municipalities, shall be fragmented or apportioned into different districts.

This avowed policy of having sanggunian members elected by district is also manifest from the four corners
of Sec. 3 of R.A. 7166. 8 Thus, a careful analysis of the provisions of Sec. 3 shows that the purpose of
districting/apportionment of the sanggunian seats is to reduce the number of positions to be voted for in the
May 11, 1992, synchronized elections and ensure the efficiency of electoral process. Considering that the
single-district provinces and the municipalities in the Metro Manila Area, which are all single-districts, and
under pars. (b) and (c) have already been apportioned into two (2) districts, they will henceforth be electing
the members of their Sangguniang Panlalawigan and Sangguniang Bayan by district in the coming May 11,
1992, elections, although under par. (d), the single-district cities and all the municipalities outside the Metro
Manila Area which are all likewise single-districts, will have to continue electing at large the members of
their Sangguniang Panlungsod and Sangguniang Bayan as they have yet to be apportioned. But beginning
the regular elections of 1995, they will all have to be elected by district. By then, COMELEC would have
had enough time to apportion the single-district cities and the municipalities outside the Metro Manila Area.

As they now stand in relation to the districting/apportionment of local government units for purposes of
election under Sec. 3 of R.A. 7166, it is clear that: (1) for provinces with two (2) or more legislative districts
contemplated in par. (a), they shall continue to be elected by district; (2) for provinces with single legislative
districts, as they have already been apportioned into two (2) districts each under par. (b), they shall
henceforth be elected likewise by district; (3) for cities with two (2) or more legislative districts, e.g., the
cities of Manila, Cebu and Davao, they shall also continue to be elected by district under the first part of
par. (c); and (4) for the thirteen (13) municipalities in the Metro Manila Area, which have already been
apportioned into two (2) districts each under the second proviso of par. (c), they shall likewise be elected
by district in the regular elections of May 11, 1992.

Then, that should leave us the Sangguniang Panlungsod of the single-district cities and the Sangguniang
Bayan of the municipalities outside Metro Manila, which remain single-districts not having been ordered
apportioned under Sec. 3 of R.A. 7166. They will have to continue to be elected at large in the May 11,
1992, elections, although starting 1995 they shall all be elected by district to effect the full implementation
of the letter and spirit of R.A. 7166. That is the true import of par. (d). Consequently, as We view it, where
he stands, petitioner must fall.

WHEREFORE, finding no abuse of discretion, much less grave, on the part of respondent, and for lack of
merit, the instant petition is DISMISSED. No costs.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Griño-Aquino,
Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 78687 January 31, 1989

ELENA SALENILLAS AND BERNARDINO SALENILLAS, petitioners,

vs.
HONORABLE COURT OF APPEALS and HONORABLE RAYMUNDO SEVA, JUDGE OF BRANCH 38
OF THE REGIONAL TRIAL COURT OF CAMARINES NORTE and WILLIAM GUERRA, respondents.

Jose L. Lapak for petitioners.

Jose T. Atienza for private respondent.

SARMIENTO, J.:

This petition for review on certiorari which seeks the reversal and setting aside of the decision 1 of the Court
of Appeals 2 dismissing the petition for certiorari against Judge Raymundo Seva of the Regional Trial Court
of Camarines Norte and the private respondent, William Guerra, involves a pure question of law i.e., the
coverage and application of Section 119 of Commonwealth Act No. 141, as amended, known otherwise as
the Public Land Act.

The facts are undisputed.

The property subject matter of the case was formerly covered by Original Certificate of Title No. P-1248,
issued by virtue of Free Patent Application No. 192765, in favor of the spouses, Florencia H. de Enciso and
Miguel Enciso. The said original certificate of title was inscribed in the Registration Book for the Province
of Camarines Norte on December 10, 1961. On February 28, 1970, the patentees, the Enciso spouses, by
an Absolute Deed of Sale, sold the property in favor of the petitioners, the spouses Elena Salenillas and
Bernardino Salenillas for a consideration of P900.00. Petitioner Elena Salenillas is a daughter of the
Encisos. As a result of the aforementioned sale, Transfer Certificate of Title No. T-8104 of the Register of
Deeds of Camarines Norte was issued in the name of the Salenillas, cancelling Original Certificate of Title
No. P-1248. On June 30, 1971, the petitioners mortgaged the property now covered by T.C.T. No. T-8104
with the Rural Bank of Daet, Inc. The mortgage was subsequently released on November 22, 1973 after
the petitioners paid the amount of P1,000.00. Later, or on December 4, 1975, the petitioners again
mortgaged the property, this time in favor of the Philippine National Bank Branch, Daet, Camarines Norte
as security for a loan of P2,500.00.

For failure of the petitioners to pay their loan, extrajudicial foreclosure proceeding, pursuant to Act No. 3135,
was instituted by the Philippine National Bank against the mortgage and the property was sold at a public
auction held on February 27, 1981. The private respondent, William Guerra, emerged as the highest bidder
in the said public auction and as a result thereof a "Certificate of Sale" was issued to him by the Ex Officio
Provincial Sheriff of Camarines Norte. Ultimately, on July 12, 1983, a "Sheriff's Final Deed" was executed
in favor of the private respondent.

On August 17,1983, the Philippine National Bank filed with the Regional Trial Court of Camarines Norte at
Daet, a motion for a writ of possession. The public respondent, Judge Raymundo Seva of the trial court,
acting on the motion, issued on September 22, 1983 an order for the issuance of a writ of possession in
favor of the private respondent. When the deputy sheriff of Camarines Norte however, attempted on
November 17, 1983, to place the property in the possession of the private respondent, the petitioners
refused to vacate and surrender the possession of the same and instead offered to repurchase it under
Section 119 of the Public Land Act. On August 15, 1984, another motion, this time for the issuance of an
alias writ of possession was filed by the private respondent with the trial court. The petitioners, on August
31, 1984, opposed the private respondents' motion and instead made a formal offer to repurchase the
property. Notwithstanding the petitioners' opposition and formal offer, the trial court judge on October 12,
1984 issued the alias writ of possession prayed for the private respondent. The petitioners moved for a
reconsideration of the order but their motion was denied.

Undeterred by their initial setback, the petitioners elevated the case to the respondent Court of Appeals by
way of a petition for certiorari claiming that the respondent trial court judge acted with grave abuse of
discretion in issuing the order dated October 12, 1984 granting the writ of possession, and the order dated
October 22, 1984, denying their motion for reconsider consideration.

In a resolution dated January 23, 1985, the respondent appellate court gave due course to the petition;
required the parties to submit simultaneous memoranda in support to their respective positions; and
restrained the trial court and the private respondent from executing, implementing or otherwise giving effect
to the assailed writ of possession until further orders from the court. 3 However, in a decision promulgated
on September 17, 1986, the respondent Court of Appeals dismissed the case for lack of merit. According
to the appellate court:

It must be noted that when the original owner, Florencia H. Enciso whose title, OCT No. P-1248,
was issued on August 9, 1961, executed a deed of absolute sale on February 28, 1970 of the
property covered by said title to spouses Elena Salenillas and Bernardino Salenillas, the five year
period to repurchase the property provided for in Section 119 of Commonwealth Act No. 141 as
amended could have already started. Prom this fact alone, the petition should have been
dismissed. However, granting that the transfer from parent to child for a nominal sum may not be
the "conveyance" contemplated by the law. We will rule on the issue raised by the petitioners. 4

xxx xxx xxx

Applying the case of Monge, et al. vs. Angeles, et al., 5 the appellate court went on to hold that the five-year
period of the petitioners to repurchase under Section 119 of the Public Land Act had already prescribed.
The point of reckoning, ruled the respondent court in consonance with Monge is from the date the petitioners
mortgaged the property on December 4, 1973. Thus, when the petitioners made their formal offer to
repurchase on August 31, 1984, the period had clearly expired.

In an effort to still overturn the decision, the petitioners moved for reconsideration. Their motion apparently
went for naught because on May 7, 1987, the respondent appellate court resolved to deny the same. Hence,
this petition.

Before us, the petitioners maintain that contrary to the rulings of the courts below, their right to repurchase
within five years under Section 119 of the Public Land Act has not yet prescribed. To support their
contention, the petitioners cite the cases of Paras vs. Court of Appeals 6 and Manuel vs. Philippine National
Bank, et al. 7

On the other side, the private respondent, in support of the appellate court's decision, states that the sale
of the contested property by the patentees to the petitioners disqualified the latter from being legal heirs
vis-a-vis the said property. As such, they (the petitioners) no longer enjoy the right granted to heirs under
the provisions of Section 119 of the Public Land Act. 8

In fine, what need be determined and resolved here are: whether or not the petitioners have the right to
repurchase the contested property under Section 119 of the Public Land Act; and assuming the answer to
the question is in the affirmative, whether or not their right to repurchase had already prescribed.
We rule for the petitioners. They are granted by the law the right to repurchase their property and their right
to do so subsists.

Section 119 of the Public Land Act, as amended, provides in full:

Sec. 119. Every conveyance of land acquired under the free patent or homestead provisions, when
proper, shall be subject to repurchase by the applicant, his widow, or legal heirs within a period of
five years from the date of the conveyance.

From the foregoing legal provision, it is explicit that only three classes of persons are bestowed the right to
repurchase — the applicant-patentee, his widow, or other legal heirs. Consequently, the contention of the
private respondent sustained by the respondent appellate court that the petitioners do not belong to any of
those classes of repurchasers because they acquired the property not through inheritance but by sale, has
no legal basis. The petitioners-spouses are the daughter and son-in-law of the Encisos, patentees of the
contested property. At the very least, petitioner Elena Salenillas, being a child of the Encisos, is a "legal
heir" of the latter. As such, and even on this score alone, she may therefore validly repurchase. This must
be so because Section 119 of the Public Land Act, in speaking of "legal heirs," makes no distinction. Ubi
lex non distinguit nec nos distinguere debemos.

Moreover, to indorse the distinction made by the private respondent and the appellate court would be to
contravene the very purpose of Section 119 of the Public Land Act which is to give the homesteader or
patentee every chance to preserve for himself and his family the land that the State had gratuitously given
him as a reward for his labor in clearing and cultivating it. 9 Considering that petitioner Salenillas is a
daughter of the spouses Florencia H. Enciso and Miguel Enciso, there is no gainsaying that allowing her
(Elena) and her husband to repurchase the property would be more in keeping with the spirit of the law.
We have time and again said that between two statutory interpretations, that which better serves the
purpose of the law should prevail.

Guided by the same purpose of the law, and proceeding to the other issue here raised, we rule that the
five-year period for the petitioners to repurchase their property had not yet prescribed.

The case of Monge et al. vs. Angeles, et al., 10 cited as authority by the respondent Court of Appeals is
inapplicable to the present controversy. The facts obtaining there are substantially different from those in
this case. In Monge the conveyance involved was a pacto de retro sale and not a foreclosure sale. More
importantly, the question raised there was whether the five-year period provided for in Section 119 "should
be counted from the date of the sale even if the same is with an option to repurchase or from the date the
ownership of the land has become consolidated in favor of the purchaser because of the homesteader's
failure to redeem it. 11 It is therefore understandable why the Court ruled there as it did. A sale on pacto de
retro immediately vests title, ownership, and, generally possession over the property on the vendee a retro,
subject only to the right of the vendor a retro to repurchase within the stipulated period. It is an absolute
sale with a resolutory condition.

The cases 12 pointed to by the petitioner in support of their position, on the other hand, present facts that
are quite identical to those in the case at bar. Both cases involved properties the titles over which were
obtained either through homestead or free patent. These properties were mortgaged to a bank as collateral
for loans, and, upon failure of the owners to pay their indebtedness, the mortgages were foreclosed. In both
instances, the Court ruled that the five-year period to. repurchase a homestead sold at public auction or
foreclosure sale under Act 3135 begins on the day after the expiration of the period of redemption when
the deed of absolute sale is executed thereby formally transferring the property to the purchaser, and not
otherwise. Taking into account that the mortgage was foreclosed and the mortgaged property sold at a
public auction to the private respondent on February 27, 1981, with the "Sheriff's Final Deed" issued on
July 12, 1983, the two offers of the petitioners to repurchase the first on November 17, 1983, and the
second, formally, on August 31, 1984 were both made within the prescribed five-year period.
Now, as regards the redemption price, applying Sec. 30 of Rule 39 of the Revised Rules of Court, the
petitioners should reimburse the private respondent the amount of the purchase price at the public auction
plus interest at the rate of one per centum per month up to November 17, 1983, together with the amounts
of assessments and taxes on the property that the private respondent might have paid after purchase and
interest on the last named amount at the same rate as that on the purchase price. 13

WHEREFORE, the petition is GRANTED. The Decision dated September 17, 1986, and the Resolution
dated May 7, 1987 of the Court of Appeals, and the Orders dated September 22, 1983, October 12, 1984,
and October 22, 1984 of the Regional Trial Court of Daet, Camarines Norte, are hereby REVERSED and
SET ASIDE, and another one ENTERED directing the private respondent to reconvey the subject property
and to execute the corresponding deed of reconveyance therefor in favor of the petitioners upon the return
to him by the latter of the purchase price and the amounts, if any, of assessments or taxes he paid plus
interest of one (1%) per centum per month on both amounts up to November 17, 1983.

No costs.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Padilla and Regalado, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 93177 August 2, 1991

B/GEN. JOSE COMENDADOR, B/GEN, MARIELO BLANDO, CAPT. DANILO PIZARRO, CAPT.
MANUEL ISON, COL. LUISITO SANCHEZ, LTC. ROMELINO GOJO, LTC. ARSENIO TECSON, LTC.
RAFAEL GALVEZ, LTC. TIBURCIO FUSILLERO, LTC. ERICSON AURELIO, LTC. JACINTO LIGOT
LTC. FRANKLIN BRAWNER, MAJ. ALFREDO OLIVEROS, MAJ. CESAR DE LA PERA, MAJ.
LEUVINO VALENCIA, CAPT. FLORENCIO FLORES, CAPT. JAIME JUNIO, CAPT. DANILO LIM,
CAPT. ELMER AMON, CAPT. VERGEL NACINO, and LT. JOEY SARROZA, petitioners,
vs.
GEN. RENATO S. DE VILLA, CHIEF OF STAFF, AFP, THE PTI INVESTIGATING PANEL COMPOSED
OF: COL. MANUEL S. MENDIOLA, COL. VIRTUD NORBERTO L. DAGZA MAJ. FELIX V. BALDONADO
and MAJ. ESTELITO L. PORNEA and GENERAL COURT-MARTIAL NO. 14 COMPOSED OF: B/GEN.
DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI, COL.
WILLY FLORENDO, COL. DIONY A. VENTURA and CAPT. FRANCISCO T. MALLILLIN, respondents.

No. 95020 August 2, 1991

B/GEN. DEMETRIO CAMUA, COL. HERMIMO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO
ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN,
petitioners,
vs.
HON. MIANO C. ASUNCION, Presiding Judge, Branch 104, REGIONAL TRIAL COURT, Q.C., LTC.
JACINTO LIGOT PA., respondents.

No. 96948 August 2, 1991

B/GEN. JOSE COMENDADOR, B/GEN. MARCELO BLANDO, CAPT. DANILO PIZARRO PN, CAPT.
MANUEL ISON PN, LTC. ROMELINO GOJO PN (M), LTC. ARSENIO TECSON PA, LTC. RAFAEL
GALVEZ PA, LTC. TIBURCIO FUSILLERO PA, LTC. ERICSON AURELIO PA, LTC. JACINTO LIGOT
PA, LTC. FRANKLIN BRAWNER PA, MAJ. ALFREDO OLIVEROS PA, MAJ. CESAR DE LA PENA PN
(M): MAJ. LEUVINO VALENCIA PA, CAPT. FLORENCIO FLORES PA, CAPT. JAIME JUNIO PA,
CAPT. DANILO LIM PA, CAPT. ELMER AMON PAF CAPT. VERGEL NACINO, and LT. JOEY
SARROZA, petitioners,
vs.
B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO
ODI COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN
PRESIDENT AND MEMBERS OF GENERAL COURT-MARTIAL NO. 14, respondents.

No. 97454 August 2, 1991

AFP CHIEF OF STAFF LT. GEN. RODOLFO BIAZON, DEPUTY CHIEF OF STAFF MAJOR GEN.
ALEXANDER AGUIRRE, PNP DIRECTOR GENERAL MAJOR GEN. CESAR NAZARENO and LT.
COL. ALBERTO OLARIO, Commanding Officer of the PNP/INP Detention Center/Jail, petitioners,
vs.
HON. ANTONIO P. SOLANO, Presiding Judge, Regional Trial Court, Quezon City, Branch 86, CAPTAIN
REYNALDO S. RAFAEL, 1 LT SERVANDO A. BAOANAN PN(M), 1 LT. WILFREDO JIMENEZ PAF 1 LT.
ATANACIO T. MACALAN JR PMM 2LT ELISEO T. RASCO PC, 2LT JONAS CALLEJA PC, 2LT JAIRUS
JS GELVEZON III PMM 2LT JOSELITO CABREROS PMM 2LT MEMEL ROJAS PN(M) and 2LT
HERMINIO L. CANTACO PC, respondents.
Armando M. Marcelo and Rainier L. Madrid for petitioners Luisito Sanchez, Tiburcio Fusillero, Ericson
Aurelio, Levino Valencia, Danilo Arnon Vergel Nacino, Florencio Flores, Benigno Junio and Joey Sarroza.
Manuel Q. Malvar for Rafael Galvez and Danny Lim.
Manuel E. Valenzuela for Arsenio Tecson
Mariano R. Santiago for Alfredo Oliveros.
Ricardo J.M. Rivera for Manuel Ison.
Castillo, Laman, Tan and Pantaleon for Danilo Pizarro.
Alfredo Lazaro for Romelino Gojo.
Manuel A. Barcelona, Jr. for Jose Comendador.
Jonathan B.S. Rebong and Efren C. Carag for Marcelo Blando.
Pablito V. Sanidad for Franklin Brawner and Ericson Aurelio.
Efren C. Moncupa for All Tecson.
M.M. Lazaro & Associates for respondents Ligot and Ison .
Baldomero S.P. Gatbonton, Jr. for Jacinto Ligot.
Salvador B. Britanico for Cesar de la Pena.
Gilbert R.T. Reyes for Danilo Pizarro.
Ponce Enrile, Cayetano, Reyes & Manalastas for petitioners in G.R. No. 93177.
The Solicitor General for respondents.

CRUZ, J.:

These four cases have been consolidated because they involve practically the same parties and related
issues arising from the same incident.

The petitioners in G.R. Nos. 93177 and 96948 and the private respondents in G.R. Nos. 95020 and 97454
are officers of the Armed Forces of the Philippines facing prosecution for their alleged participation in the
failed coup d' etat that took place on December 1 to 9, 1989.

The charges against them are violation of Articles of War (AW) 67 (Mutiny), AW 96 (Conduct Unbecoming
an Officer and a Gentleman) and AW 94 (Various Crimes) in relation to Article 248 of the Revised Penal
Code (Murder).

In G.R. No. 93177, which is a petition for certiorari, prohibition and mandamus, they are questioning the
conduct of the Pre-Trial Investigation PTI Panel constituted to investigate the charges against them and the
creation of the General Court Martial GCM convened to try them.

In G.R. No. 96948, the petitioners, besides challenging the legality of GCM No. 14, seek certiorari against
its ruling denying them the right to peremptory challenge as granted by Article 18 of Com. Act No. 408.

In G.R. No. 95020, the orders of the respondent judge of the Regional Trial Court of Quezon City are
assailed on certiorari on the ground that he has no jurisdiction over GCM No. 14 and no authority either to
set aside its ruling denying bail to the private respondents.

In G.R. No. 97454, certiorari is also sought against the decision of the Regional Trial Court of Quezon City
in a petition for habeas corpus directing the release of the private respondents. Jurisdictional objections are
likewise raised as in G.R. No. 95020.

Before the charges were referred to GCM No. 14, a Pre-Trial Investigation PTI Panel had been constituted
pursuant to Office Order No. 16 dated January 14, 1990, to investigate the petitioners in G.R. Nos. 93177
and 96948. The PTI Panel issued a uniform subpoena dated January 30, 1990, individually addressed to
the petitioners, to wit:
You are hereby directed to appear in person before the undersigned Pre-Trial Investigating Officers on 12
Feb 90 9:00 a.m. at Kiangan Hall, Camp Crame Quezon City, then and there to submit your counter-affidavit
and the affidavits of your witnesses, if any, in the pre-trial investigation of the charge/charges against you
for violence of AWs _______________. DO NOT SUBMIT A MOTION TO DISMISS.

Failure to submit the aforementioned counter-affidavits on the date above specified shall be deemed a
waiver of your right to submit controverting evidence.

On the same date, the petitioners acknowledged receipt of a copy of the charge sheet, sworn statements
of witnesses, and death and medical certificates of victims of the rebellion.

At the first scheduled hearing, the petitioners challenged the proceedings on various grounds, prompting
the PTI Panel to grant them 10 days within which to file their objections in writing This was done through a
Motion for Summary Dismissal dated February 21, 1990.

In a resolution dated February 27,1990, the PTI Panel denied the motion and gave the petitioners 5 days
from notice to submit their respective counter-affidavits and the affidavits of their witnesses.

On March 7, 1990, the petitioners verbally moved for reconsideration of the foregoing denial and the PTI
Panel gave them 7 days within which to reduce their motion to writing. This was done on March 14,1990.

The petitioners now claim that there was no pre-trial investigation of the charges as mandated by Article of
War 71, which provides:

Art. 71. Charges Action upon. — Charges and specifications must be signed by a person subject to military
law, and under the oath either that he has personal knowledge of, or has investigated, the matters set forth
therein and that the same are true in fact, to the best of his knowledge and belief.

No charge will be referred to a general court-martial for trial until after a thorough and impartial investigation
thereof shall have been made. This investigation will include inquiries as to the truth of the matter set forth
in said charges, form of charges, and what disposition of the case should be made in the interest of justice
and discipline. At such investigation full opportunity shall be given to the accused to cross-examine
witnesses against him if they are available and to present anything he may desire in his own behalf, either
in defense or mitigation, and the investigating officer shall examine available witnesses requested by the
accused. If the charges are forwarded after such investigation, they shall be accompanied by a statement
of the substance of the testimony taken on both sides. (Emphasis supplied.)

They also allege that the initial hearing of the charges consisted merely of a roll call and that no prosecution
witnesses were presented to reaffirm their affidavits. while the motion for summary dismissal was denied,
the motion for reconsideration remains unresolved to date and they have not been able to submit their
counter-affidavits.

At the hearing of May 15, 1990, the petitioners in G.R. No. 96948 manifested that they were exercising their
right to raise peremptory challenges against the president and members of GCM No.14. They invoked
Article 18 of Com. Act No. 408 for this purpose. GCM No. 14 ruled, however, that peremptory challenges
had been discontinued under P.D. No. 39.

In G.R. No. 95020, Ltc Jacinto Ligot applied for bail on June 5, 1990, but the application was denied by
GCM No.14. He thereupon filed with the Regional Trial Court of Quezon City a petition for certiorari and
mandamus with prayer for provisional liberty and a writ of preliminary injunction. After considering the
petition and the answer thereto filed by the president and members of GCM No.14, Judge Maximiano C.
Asuncion issued an order granting provisional liberty to Ligot.

On July 28, 1990, Ligot filed an urgent omnibus motion to enforce the order for his release and to declare
in contempt the commanding officer of the PC/INP Jail for disobey 'ng the said order. He later also
complained that Generals De Villa and Aguirre had refused to release him "pending final resolution of the
appeal to be taken" to this Court.

After hearing, the trial court reiterated its order for the provisional liberty of Ligot, as well as of intervenors
Ltc Franklin Brawner, Lt/Col. Arsenio Tecson and Maj. Alfredo Oliveros, and later of additional intervenors
Ltc Romelino Gojo and Capt. Manuel Ison.

On August 22, 1990, the trial court rendered judgment inter alia:

(a) Declaring, that Section 13, Article III of the Constitution granting the right to bail to all persons with the
defined exception is applicable and covers all military men facing court-martial proceedings. Accordingly,
the assailed orders of General Court- Martial No. 14 denying bail to petitioner and intervenors on the
mistaken assumption that bail does not apply to military men facing court-martial proceedings on the ground
that there is no precedent, are hereby set aside and declared null and void. Respondent General Court-
Martial No. 14 is hereby directed to conduct proceedings on the applications of bail of the petitioner,
intervenors and which may as well include other persons facing charges before General Court-Martial No.
14.

Pending the proceedings on the applications for bail before General Court-Martial No. 14, this Court
reiterates its orders of release on the provisional liberty of petitioner Jacinto Ligot as well as intervenors
Franklin Brawner and Arsenio Tecson.

On February 18, 1991, the private respondents in G.R. No. 97454 filed with this Court a petition for habeas
corpus on the ground that they were being detained in Camp Crame without charges. The petition was
referred to the Regional Trial Court of Quezon City, where it was raffled to respondent Judge Antonio P.
Solano. Finding after hearing that no formal charges had been filed against the petitioners after more than
a year after their arrest, the trial court ordered their release.

II

The Court has examined the records of this case and rules as follows.

It appears that the petitioners in G.R. Nos. 93177 and 96948 were given several opportunities to present
their side at the pre-trial investigation, first at the scheduled hearing of February 12, 1990, and then again
after the denial of their motion of February 21, 1990, when they were given until March 7, 1990, to submit
their counter-affidavits. On that date, they filed instead a verbal motion for reconsideration which they were
again asked to submit in writing. This they did on March 13, 1990. The motion was in effect denied when
the PTI Panel resolved to recommend that the charges be referred to the General Court Martial for trial.

The said petitioners cannot now claim they have been denied due process because the investigation was
resolved against them owing to their own failure to submit their counter-affidavits. They had been expressly
warned In the subpoena sent them that "failure to submit the aforementioned counter-affidavits on the date
above specified shall be deemed a waiver of (their) right to submit controverting evidence." They chose not
to heed the warning. As their motions appeared to be dilatory, the PTI Panel was justified in referring the
charges to GCM No. 14 without waiting for the petitioners to submit their defense.

Due process is satisfied as long as the party is accorded an opportunity to be heard.1âwphi1 If it is not
availed of, it is deemed waived or forfeited without violation of the Bill of Rights.

There was in our view substantial compliance with Article of War 71 by the PTI Panel. Moreover, it is now
settled that "even a failure to conduct a pre-trial investigation does not deprive a general court- martial of
jurisdiction." We so held in Arula v. Espino,1 thus:

xxx xxx xxx

But even a failure to conduct a pre-trial investigation does not deprive a general court-martial of jurisdiction.
The better accepted concept of pre-trial investigation is that it is directory, not mandatory, and in no way
affects the jurisdiction of a court-martial. In Humphrey v. Smith, 336 U.S. 695, 93 L ed 986 (1949), the Court
said:

We do not think that the pre-trial investigation procedure by Article 70 (The Philippine counter-part
is article of war 71, Commonwealth Act 408) can properly be construed as an indispensable pre-
requisite to the exercise of the Army General court martial jurisdiction.. The Article does serve
important functions in the administration of court-martial procedures and does provide safeguards
to an accused. Its language is clearly such that a defendant could object to trial in the absence of
the required investigation. In that event the court-martial could itself postpone trial pending the
investigation. And the military reviewing authorities could consider the same contention, reversing
a court- martial conviction where failure to comply with Article 70 has substantially injured an
accused. But we are not persuaded that Congress intended to make otherwise valid court-martial
judgments wholly void because pre-trial investigations fall short of the standards prescribed by
Article 70. That Congress has not required analogous pre-trial procedure for Navy court-martial is
an indication that the investigatory plan was not intended to be exalted to the jurisdictional level.

xxx xxx xxx

Shortly after enactment of Article 70 in 1920 the Judge Advocate General of the Army did hold that
where there had been no pre-trial investigation, court-martial proceedings were void ab initio. But
this holding has been expressly repudiated in later holdings of the Judge Advocate General. This
later interpretation has been that the pre-trial requirements of Article 70 are directory, not
mandatory, and in no way effect the jurisdiction of a court-martial. The War Department's
interpretation was pointedly called to the attention of Congress in 1947 after which Congress
amended Article 70 but left unchanged the language here under consideration. compensable pre-
requisite to the exercise of Army general court-martial jurisdiction

A trial before a general court-martial convened without any pretrial investigation under article of war 71
would of course be altogether irregular but the court-martial might nevertheless have jurisdiction.
Significantly, this rule is similar to the one obtaining in criminal procedure in the civil courts to the effect that
absence of preliminary investigation does not go into the jurisdiction of the court but merely to the regularity
of the proceedings.

As to what law should govern the conduct of the preliminary investigation, that issue was resolved more
than two years ago in Kapunan v. De Villa,2 where we declared:

The Court finds that, contrary to the contention of petitioners, there was substantial compliance with the
requirements of law as provided in the Articles of War and P.D. No. 77, as amended by P.D. No. 911. The
amended charge sheets, charging petitioners and their co-respondents with mutiny and conduct
unbecoming an officer, were signed by Maj. Antonio Ruiz, a person subject to military law, after he had
investigated the matter through an evaluation of the pertinent records, including the reports of respondent
AFP Board of Officers, and was convinced of the truth of the testimonies on record. The charge sheets
were sworn to by Maj. Ruiz, the "accuser," in accordance with and in the manner provided under Art. 71 of
the Articles of War. Considering that P.D. No. 77, as amended by P.D. No. 911, is only of suppletory
application, the fact that the charge sheets were not certified in the manner provided under said decrees,
i.e., that the officer administering the oath has personally examined the affiant and that he is satisfied that
they voluntarily executed and understood its affidavit, does not invalidate said charge sheets. Thereafter, a
"pretrial investigation" was conducted by respondent Maj. Baldonado, wherein, pursuant to P.D. No. 77, as
amended by P.D. No. 911, petitioners were subpoenaed and required to file their counter-affidavit.
However, instead of doing so, they filed an untitled pleading seeking the dismissal of the charges against
them. That petitioners were not able to confront the witnesses against them was their own doing, for they
never even asked Maj. Baldonado to subpoena said witnesses so that they may be made to answer
clarificatory questions in accordance with P. D, No. 77, as amended by P.D. No. 911.
The petitioners also allege that GCM No. 14 has not been constitute in accordance with Article 8 of the
Articles of War because General Order No. M-6, which supposedly convened the body, was not signed by
Gen. Renato de Villa as Chief of Staff.

Article of War No. 8 reads:

Art. 8. General Courts-Martial. — The President of the Philippines, the Chief of Staff of the Armed Forces
of the Philippines, the Chief of Constabulary and, when empowered by the President, the commanding
officer of a major command or task force, the commanding officer of a division, the commanding officer of
a military area, the superintendent of the Military Academy, the commanding officer of a separate brigade
or body of troops may appoint general courts-martial; but when any such commander is the accuser or the
prosecutor of the person or persons to be tried, the court shall be appointed by superior competent authority.
...

While it is true that General Order No. M-6 was not signed by Gen. De Villa, there is no doubt that he
authorized it because the order itself said it was issued "By Command of General De Villa" and it has not
been shown to be spurious. As observed by the Solicitor General, the Summary Disposition Form showed
that Gen. De Villa, as Chief of Staff, AFP, actually constituted GCM No. 14 and appointed its president and
members. It is significant that General De Villa has not disauthorized or revoked or in any way disowned
the said order, as he would certainly have done if his authority had been improperly invoked. On the
contrary, as the principal respondent in G.R. No. 93177, he sustained General Order No. M 6 in the
Comment filed for him and the other respondents by the Solicitor General.

Coming now to the right to peremptory challenge, we note that this was originally provided for under Article
18 of Com. Act No. 408 (Articles of War), as amended by Rep. Act No. 242, on June 12, 1948, to wit:

Art. 18. Challenges. — Members of general or special courts-martial may be challenged by the accused or
the trial judge advocate for cause stated to the court. The court shall determine the relevancy and validity
thereof, and shall not receive a challenge to more than one member at a time. Challenges by the trial judge
advocate shall ordinarily be presented and decided before those by the accused are offered. Each side
shall be entitled to the peremptory challenge, but the law member of the court shall not be challenged
except for cause.

The history of peremptory challenge was traced in Martelino v. Alejandro,3 thus:

In the early formative years of the infant Philippine Army, after the passage in 1935 of Commonwealth Act
No. 1 (otherwise known as the National Defense Act), except for a handful of Philippine Scout officers and
graduates of the United States military and naval academies who were on duty with the Philippine Army,
there was a complete dearth of officers learned in military law, its aside from the fact that the officer corps
of the developing army was numerically made equate for the demands of the strictly military aspects of the
national defense program. Because of these considerations it was then felt that peremptory challenges
should not in the meanwhile be permitted and that only challenges for cause, in any number, would be
allowed. Thus Article 18 of the Articles of War (Commonwealth Act No. 408), as worded on September 14,
1938, the date of the approval of the Act, made no mention or reference to any peremptory challenge by
either the trial judge advocate of a court- martial or by the accused. After December 17,1958, when the
Manual for Courts-Martial of the Philippine Army became effective, the Judge Advocate General's Service
of the Philippine Army conducted a continuing and intensive program of training and education in military
law, encompassing the length and breadth of the Philippines. This program was pursued until the outbreak
of World War 11 in the Pacific on December 7, 1941. After the formal surrender of Japan to the allies in
1945, the officer corps of the Armed Forces of the Philippines had expanded to a very large number, and a
great many of the officers had been indoctrinated in military law. It was in these environmental
circumstances that Article of War 18 was amended on June 12,1948 to entitle "each side" to one peremptory
challenge, with the sole proviso that "the law member of court shall not be challenged except for cause.
On September 27,1972, President Marcos issued General Order No. 8, empowering the Chief of Staff of
the Armed Forces to create military tribunals "to try and decide cases of military personnel and such other
cases as may be referred to them.

On November 7,1972, he promulgated P.D. No. 39 (Governing the Creation, Composition, Jurisdiction,
Procedure, and other matters relevant to military Tribunals). This decree disallowed the peremptory
challenge, thus:

No peremptory challenge shall be allowed. Challenges for cause may be entertained to insure impartiality
and good faith. Challenges shall immediately be heard and determined by a majority of the members
excluding the challenged member. A tie vote does not disqualify the challenged member. A successfully
challenged member shall be immediately replaced.

On June 11, 1978, President Marcos promulgated P.D. No. 1498, or the National Security Code, which was
a compilation and codification of decrees, general orders, LOI and policies intended "to meet the continuing
threats to the existence, security and stability of the State." The modified rule on challenges under P.D. No.
39 was embodied in this decree.

On January 17,1981, President Marcos issued Proc. No. 2045 proclaiming the termination of the state of
martial law throughout the Philippines. The proclamation revoked General Order No. 8 and declared the
dissolution of the military tribunals created pursuant thereto upon final determination of the cases pending
therein.

P.D. No. 39 was issued to implement General Order No. 8 and the other general orders mentioned therein.
With the termination of martial law and the dissolution of the military tribunals created thereunder, the
reason for the existence of P.D. No. 39 ceased automatically.

It is a basic canon of statutory construction that when the reason of the law ceases, the law itself ceases.
Cessante ratione legis, cessat ipsa lex. This principle is also expressed in the maxim ratio legis est anima:
the reason of law is its soul.

Applying these rules, we hold that the withdrawal of the right to peremptory challenge in L P.D. No. 39
became ineffective when the apparatus of martial law was dismantled with the issuance of Proclamation
No. 2045, As a result, the old rule embodied in Article 18 of Com. Act No. 408 was automatically revived
and now again allows the right to peremptory challenge.

We do not agree with the respondents in G.R. No. 96948 that the right to peremptory challenge remains
withdrawn under P.D. No. 39. To repeat for emphasis, this decree was itself withdrawn when martial law
was lifted on January 17, 1981. Indeed, even if not so withdrawn, it could still be considered no longer
operative, having been cast out under the new dispensation as, in the words of the Freedom Constitution,
one of the "iniquitous vestiges of the previous regime.

The military tribunal was one of the most oppressive instruments of martial law. It is curious that the present
government should invoke the rules of that discredited body to justify its action against the accused officers.

The Court realizes that the recognition of the right to peremptory challenge may be exploited by a
respondent in a court-martial trial to delay the proceedings and defer his deserved Punishment. It is hoped
that the accused officers in the cases at bar will not be so motivated. At any rate, the wisdom of Com. Act
No. 408, in the light of present circumstances, is a matter addressed to the law-makers and not to this
Court. The judiciary can only interpret and apply the laws without regard to its own misgivings on their
adverse effects. This is a problem only the political departments can resolve.

The petitioners in G.R. Nos. 95020 and 97454 question the propriety of the petition for certiorari and
mandamus and the petition for habeas corpus filed by the private respondents with the Regional Trial
Courts of Quezon City. It is argued that since the private respondents are officers of the Armed Forces
accused of violations of the Articles of War, the respondent courts have no authority to order their release
and otherwise interfere with the court-martial proceedings.

The petitioners further contend that under Sec. 9(3) of BP 1 29, the Court of Appeals is vested with
"exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of
Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions." Rather
irrelevantly, the petitioners also cite the case of Yang v. Court of Appeals4 where this Court held that
"appeals from the Professional Regulation Commission are now exclusively cognizable by the Court of
Appeals.

It should be noted that the aforecited provision and the case cited refer to ordinary appeals and not to the
remedies employed by the accused officers before the respondent courts.

In Martelino, we observed as follows:

It is true that civil courts as a rule exercise no supervision or correcting power over the proceedings of
courts-martial, and that mere errors in their proceedings are not open to consideration. The single inquiry,
the test, is jurisdiction. But it is equally true that in the exercise of their undoubted discretion, courts-martial
may commit such an abuse of discretion — what in the language of Rule 65 is referred to as "grave abuse
of discretion" — as to give rise to a defect in their jurisdiction. This is precisely the point at issue in this
action suggested by its nature as one for certiorari and prohibition ... .

The Regional Trial Court has concurrent jurisdiction with the Court of Appeals and the Supreme Court over
petitions for certiorari, prohibition or mandamus against inferior courts and other bodies and on petitions for
habeas corpus and quo warranto.5 In the absence of a law providing that the decisions, orders and ruling
of a court-martial or the Office of the Chief of Staff can be questioned only before the Court of Appeals and
the Supreme Court, we hold that the Regional Trial Court can exercise similar jurisdiction.

We find that the right to bail invoked by the private respondents in G.R. Nos. 95020 has traditionally not
been recognized and is not available in the military, as an exception to the general rule embodied in the Bill
of Rights. This much was suggested in Arula, where we observed that "the right to a speedy trial is given
more emphasis in the military where the right to bail does not exist.

The justification for this exception was well explained by the Solicitor General as follows:

The unique structure of the military should be enough reason to exempt military men from the constitutional
coverage on the right to bail.

Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of
democratic system, are allowed the fiduciary use of firearms by the government for the discharge of their
duties and responsibilities and are paid out of revenues collected from the people. All other insurgent
elements carry out their activities outside of and against the existing political system.

xxx xxx xxx

National security considerations should also impress upon this Honorable Court that release on bail of
respondents constitutes a damaging precedent. Imagine a scenario of say 1,000 putschists roaming the
streets of the Metropolis on bail, or if the assailed July 25,1990 Order were sustained, on "provisional" bail.
The sheer number alone is already discomforting. But, the truly disquieting thought is that they could freely
resume their heinous activity which could very well result in the overthrow of duly constituted authorities,
including this Honorable Court, and replace the same with a system consonant with their own concept of
government and justice.

The argument that denial from the military of the right to bail would violate the equal protection clause is
not acceptable. This guaranty requires equal treatment only of persons or things similarly situated and does
not apply where the subject of the treatment is substantially different from others. The accused officers can
complain if they are denied bail and other members of the military are not. But they cannot say they have
been discriminated against because they are not allowed the same right that is extended to civilians.

On the contention of the private respondents in G.R. No. 97454 that they had not been charged after more
than one year from their arrest, our finding is that there was substantial compliance with the requirements
of due process and the right to a speedy trial.

The petition for habeas corpus was directly filed with this Court on February 18, 1991, and was referred to
the Regional Trial Court of Quezon City for raffle, hearing and decision. It was heard on February 26, 1991,
by the respondent court, where the petitioners submitted the charge memorandum and specifications
against the private respondents dated January 30, 1991. On February 12, 1991, pursuant to Office Order
No. 31-91, the PTI panel was created and initial investigation was scheduled on March 12, 1991 at 2:00
p.m. On March 20, 1991, the private respondents received the copies of the charges, charge sheets and
specifications and were required to submit their counter-affidavits on or before April 11, 1991. There was
indeed a delay of more than one year in the investigation and preparation of the charges against the private
respondents. However, this was explained by the Solicitor General thus:

... The AFP Special Investigating Committee was able to complete it pre-charge investigation only after one
(1) year because hundreds of officers and thousands of enlisted men were involved in the failed coup. All
of them, as well as other witnesses, had to be interviewed or investigated, and these inevitably took months
to finish. The pre-charge investigation was rendered doubly difficult by the fact that those involved were
dispersed and scattered throughout the Philippines. In some cases, command units, such as the Scout
Rangers, have already been disbanded. After the charges were completed, the same still had to pass
review and approval by the AFP Chief of Staff.

While accepting this explanation, the Court nevertheless must reiterate the following admonition:

This Court as protector of the rights of the people, must stress the point that if the participation of petitioner
in several coup attempts for which he is confined on orders of Adjutant General Jorge Agcaoili cannot be
established and no charges can be filed against him or the existence of a prima facie case warranting trial
before a military commission is wanting, it behooves respondent then Major General Rodolfo Biazon (now
General) to release petitioner. Respondents must also be reminded that even if a military officer is arrested
pursuant to Article 70 of then Articles of War, indefinite confinement is not sanctioned, as Article 71 thereof
mandates that immediate steps must be taken to try the person accused or to dissmiss the charge and
release him. Any officer who is responsible for unnecessary delay in investigating or carrying the case to a
final conclusion may even be punished as a court martial may direct. 6

It should be noted, finally, that after the decision was rendered by Judge Solano on February 26, 1991, the
government filed a notice of appeal ad cautelam and a motion for reconsideration, the latter was ultimately
denied, after hearing, on March 4, 1991. The 48- hour period for appeal under Rule 41, Section 18, of the
Rules of Court did not run until after notice of such denial was received by the petitioners on March 12,
1991. Contrary to the private respondents' contention, therefore, the decision had not yet become final and
executory when the special civil action in G.R. No. 97454 was filed with this Court on March 12, 1991.

III

Regarding the propriety of the petitions at bar, it is well to reiterate the following observations of the Court
in Arula:

The referral of charges to a court-martial involves the exercise of judgment and discretion (AW 71). A
petition for certiorari, in order to prosper, must be based on jurisdictional grounds because, as long as the
respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to
nothing more than an error of judgment which may be reviewed or corrected only by appeal. Even an abuse
of discretion is not sufficient by itself to justify the issuance of a writ of certiorari.
As in that case, we find that the respondents in G.R. No. 93177 have not acted with grave abuse of
discretion or without or in excess of jurisdiction to justify the intervention of the Court and the reversal of
the acts complained of by the petitioners. Such action is indicated, however, in G.R. No. 96948, where we
find that the right to peremptory challenge should not have been denied, and in G.R. Nos. 95020 and 97454,
where the private respondents should not have been ordered released.

ACCORDINGLY, in G.R. No. 93177, the petition is DISMISSED for lack of merit. In G.R. No. 96948, the
petition is GRANTED, and the respondents are DIRECTED to allow the petitioners to exercise the right of
peremptory challenge under Article 18 of the Articles of War. In G.R. Nos. 95020 and 97454, the petitions
are also GRANTED, and the orders of the respondent courts for the release of the private respondents are
hereby REVERSED and SET ASIDE. No costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin,
Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Separate Opinions

SARMIENTO, J., concurring:

I concur with the ponencia of my esteemed colleague, Mr. Justice Cruz, but I dissent insofar as he would
deny bail to accused military personnel.

The Constitution explicitly grants the right to bail to "all persons" before conviction, with the only exception
of "those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong."1 The
Charter also states that "[T]he right to bail shall not be impaired even if the writ of habeas corpus is
suspended."2 To deny the military officers here concerned of the right to bail is to circumscribe the inclusive
meaning of "all persons" — the coverage of the right.

I believe that military officers fall within "persons".

The picture conjured up by the Solicitor General of "a scenario of say 1,000 putschists roaming the streets
of the Metropolis on bail, or if the assailed July 25, 1990 Order were sustained, on "provisional" bail [t]he
sheer number alone is already discomforting . . . [b]ut, the truly disquieting thought is that they could freely
resume their heinous activity which could very well result in the overthrow of duly constituted authorities,
including this Honorable Court, and replace the same with a system consonant with their own concept of
government and justice."3 But would a scenario of 1,000 murderers or drug pushers roaming the streets of
the metropolis justify a denial of the right to bail? Would not that dark picture painted by the Solicitor General
be reproduced by 1,000 "equally dangerous" elements of society?

We gave bail Senator Enrile and General Brawner. I find no reason why the petitioners should not be
granted the same right.

The majority would point to tradition, supposed to be firmly settled, as an argument to deny bail. I submit,
however, that tradition is no argument. First, the Constitution does not say it. Second, we are a government
of laws, not tradition.

If there are precedents that attest to the contrary, I submit that a reexamination is in order.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 88979 February 7, 1992

LYDIA O. CHUA, petitioner,

vs.
THE CIVIL SERVICE COMMISSION, THE NATIONAL IRRIGATION ADMINISTRATION and THE
DEPARTMENT OF BUDGET AND MANAGEMENT, respondents.

PADILLA, J.:

Pursuant to the policy of streamlining and trimming the bureaucracy, Republic Act No. 6683 was approved
on 2 December 1988 providing for benefits for early retirement and voluntary separation from the
government service as well as for involuntary separation due to reorganization. Deemed qualified to avail
of its benefits are those enumerated in Sec. 2 of the Act, as follows:

Sec. 2. Coverage. — This Act shall cover all appointive officials and employees of the National
Government, including government-owned or controlled corporations with original charters, as well
as the personnel of all local government units. The benefits authorized under this Act shall apply to
all regular, temporary, casual and emergency employees, regardless of age, who have rendered
at least a total of two (2) consecutive years of government service as of the date of separation.
Uniformed personnel of the Armed Forces of the Philippines including those of the PC-INP are
excluded from the coverage of this Act.

Petitioner Lydia Chua believing that she is qualified to avail of the benefits of the program, filed an
application on 30 January 1989 with respondent National Irrigation Administration (NIA) which, however,
denied the same; instead, she was offered separation benefits equivalent to one half (1/2) month basic pay
for every year of service commencing from 1980. A recourse by petitioner to the Civil Service Commission
yielded negative results. 1 Her letter for reconsideration dated 25 April 1989 pleaded thus:

xxx xxx xxx

With due respect, I think the interpretation of the Honorable Commissioner of RA 6683 does not conform
with the beneficent purpose of the law. The law merely requires that a government employee whether
regular, temporary, emergency, or casual, should have two consecutive years of government service in
order to be entitled to its benefits. I more than meet the requirement. Persons who are not entitled are
consultants, experts and contractual(s). As to the budget needed, the law provides that the Department of
Budget and Management will shoulder a certain portion of the benefits to be allotted to government
corporations. Moreover, personnel of these NIA special projects art entitled to the regular benefits, such
(sic) leaves, compulsory retirement and the like. There is no reason why we should not be entitled to RA
6683.

xxx xxx xxx 2

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

xxx xxx xxx

We regret to inform you that your request cannot be granted. The provision of Section 3.1 of Joint DBM-
CSC Circular Letter No. 89-1 does not only require an applicant to have two years of satisfactory service
on the date of separation/retirement but further requires said applicant to be on a casual, emergency,
temporary or regular employment status as of December 2, 1988, the date of enactment of R.A. 6683. The
law does not contemplate contractual employees in the coverage.

Inasmuch as your employment as of December 31, 1988, the date of your separation from the service, is
co-terminous with the NIA project which is contractual in nature, this Commission shall sustain its original
decision.

xxx xxx xxx3

In view of such denial, petitioner is before this Court by way of a special civil action for certiorari, insisting
that she is entitled to the benefits granted under Republic Act No. 6683. Her arguments:

It is submitted that R.A. 6683, as well as Section 3.1 of the Joint DBM-CSC Circular Letter No. 89-
1 requires an applicant to be on a casual, emergency, temporary or regular employment status.
Likewise, the provisions of Section 23 (sic) of the Joint DBM-CSC Circular Letter No. 88-1,
implementing guidelines of R.A. No. 6683, provides:

"2.3 Excluded from the benefits under R.A. No. 6683 are the following:

a) Experts and Consultants hired by agencies for a limited period to perform specific activities or services
with a definite expected output: i.e. membership in Task Force, Part-Time, Consultant/Employees.

b) Uniformed personnel of the Armed Forces of the Philippines including those of the Philippine
Constabulary and Integrated National Police (PC-INP).

c) Appointive officials and employees who retire or elect to be separated from the service for optional
retirement with gratuity under R.A. No. 1616, 4968 or with pension under R.A. No. 186, as amended by
R.A. No. 6680 or P.D. No. 1146, an amended, or vice- versa.

d) Officials and employees who retired voluntarily prior to the enactment of this law and have received the
corresponding benefits of that retirement/separation.

e) Officials and employees with pending cases punishable by mandatory separation from the service under
existing civil service laws, rules and regulations; provided that if such officials and employees apply in
writing within the prescriptive period for the availment of the benefits herein authorized, shall be allowed
only if acquitted or cleared of all charges and their application accepted and approved by the head of office
concerned."

Based on the above exclusions, herein petitioner does not belong to any one of them. Ms. Chua is a full
time employee of NIA entitled to all the regular benefits provided for by the Civil Service Commission. She
held a permanent status as Personnel Assistant A, a position which belongs to the Administrative Service.
. . . If casuals and emergency employees were given the benefit of R.A. 6683 with more reason that this
petitioner who was holding a permanent status as Personnel Assistant A and has rendered almost 15 years
of faithful, continuous service in the government should be similarly rewarded by the beneficient (sic)
purpose of the law. 4

The NIA and the Civil Service Commission reiterate in their comment petitioner's exclusion from the benefits
of Republic Act No. 6683, because:

1. Petitioner's employment is co-terminous with the project per appointment papers kept by the
Administrative Service in the head office of NIA (the service record was issued by the Watershed
Management and Erosion Control Project (WMECP), Pantabangan, Nueva Ecija). The project, funded by
the World Bank, was completed as of 31 December 1988, after which petitioner's position became functus
officio.

2. Petitioner is not a regular and career employee of NIA — her position is not included in its regular plantilla.
She belongs to the non-career service (Sec. 6, P.D. No. 807) which is inherently short-lived, temporary and
transient; on the other hand, retirement presupposes employment for a long period. The most that a non-
career personnel can expect upon the expiration of his employment is financial assistance. Petitioner is not
even qualified to retire under the GSIS law.

3. Assuming arguendo that petitioner's appointment is permanent, security of tenure is available only for
the term of office (i.e., duration of project).

4. The objective of Republic Act No. 6683 is not really to grant separation or retirement benefits but
reorganization 5 to streamline government functions. The application of the law must be made consistent
with the purpose for which it was enacted. Thus, as the expressed purpose of the law is to reorganize the
government, it will not have any application to special projects such as the WMECP which exists only for a
short and definite period. This being the nature of special projects, there is no necessity for offering its
personnel early retirement benefits just to induce voluntary separation as a step to reorganization. In fact,
there is even no need of reorganizing the WMECP considering its short and limited life-span. 6

5. The law applies only to employees of the national government, government-owned or controlled
corporations with original charters and local government units.

Due to the impossibility of reconciling the conflicting interpretations of the parties, the Court is called upon
to define the different classes of employees in the public sector (i.e. government civil servants).

Who are regular employees? The Labor Code in Art. 280 (P.D. No. 492, as amended) deems an
employment regular where the employee has been engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the employer. No equivalent definition can be found
in P.D.No. 807 (promulgated on 6 October 1975, which superseded the Civil Service Act of 1965 — R.A.
No. 2260) or in the Administrative Code of 1987 (Executive Order No. 292 promulgated on 25 July 1987).
The Early Retirement Law itself (Rep. Act No. 6683) merely includes such class of employees (regular
employees) in its coverage, unmindful that no such specie is employed in the public sector.

The appointment status of government employees in the career service is classified as follows:

1. permanent — one issued to a person who has met the requirements of the position to which appointment
is made, in accordance with the provisions of the Civil Service Act and the Rules and Standards
promulgated in pursuance thereof; 7

2. temporary — In the absence of appropriate eligibles and it becomes necessary in the public interest to
fill a vacancy, a temporary appointment should be issued to a person who meets all the requirements for
the position to which he is being appointed except the appropriate civil service eligibility: Provided, That
such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if
a qualified civil service eligible becomes available. 8

The Administrative Code of 1987 characterizes the Career Service as:

(1) Open Career positions for appointment to which prior qualification in an appropriate examination
is required;

(2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and
academic staff of state colleges and universities, and scientific and technical positions in scientific or
research institutions which shall establish and maintain their own merit systems;
(3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau
Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department
Service and other officers of equivalent rank as may be identified by the Career Executive Service Board,
all of whom are appointed by the President.

(4) Career officers, other than those in the Career Executive Service, who are appointed by the President,
such as the Foreign Service Officers in the Department of Foreign Affairs;

(5) Commission officers and enlisted men of the Armed Forces which shall maintain a separate merit
system;

(6) Personnel of government-owned or controlled corporations, whether performing governmental or

proprietary functions, who do not fall under the non-career service; and

(7) Permanent laborers, whether skilled, semi-skilled, or unskilled. 9

The Non-Career Service, on the other hand, is characterized by:

. . . (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the
career service; and (2) tenure which is limited to a period specified by law, or which is coterminous
with that of the appointing authority or subject to his pleasure, or which is limited to the duration of
a particular project for which purpose employment was made.

Included in the non-career service are:

1. elective officials and their personal or confidential staff;

2. secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President
and their personal confidential staff(s);

3. Chairman and Members of Commissions and boards with fixed terms of office and their personal or
confidential staff;

4. contractual personnel or those whose employment in the government is in accordance with a special
contract to undertake a specific work or job requiring special or technical skills not available in the employing
agency, to be accomplished within a specific period, which in no case shall exceed one year and performs
or accomplishes the specific work or job, under his own responsibility with a minimum of direction and
supervision from the hiring agency.

5. emergency and seasonal personnel. 10

There is another type of non-career employee:

Casual — where and when employment is not permanent but occasional, unpredictable, sporadic
and brief in nature (Caro v. Rilloroza, 102 Phil. 70; Manuel v. P.P. Gocheco Lumber Co., 96 Phil.
945)

Consider petitioner's record of service:

Service with the government commenced on 2 December 1974 designated as a laborer holding
emergency status with the NIA — Upper Pampanga River Project, R & R Division. 11 From 24
March 1975 to 31 August 1975, she was a research aide with temporary status on the same project.
On 1 September 1975 to 31 December 1976, she was with the NIA-FES III; R & R Division, then
on 1 January 1977 to 31 May 1980, she was with NIA — UPR IIS (Upper Pampanga River
Integrated Irrigation Systems) DRD. On 1 June 1980, she went to NIA — W.M.E.C.P. (Watershed
Management & Erosion Control Project) retaining the status of temporary employee. While with
this project, her designation was changed to personnel assistant on 5 November 1981; starting 9
 July 1982, the status became permanent until the completion of the project on 31 December 1988.
The appointment paper 12 attached to the OSG's comment lists her status as co-terminus with the
Project.

The employment status of personnel hired under foreign — assisted projects is considered co-terminous,
that is, they are considered employees for the duration of the project or until the completion or cessation of
said project (CSC Memorandum Circular No. 39, S. 1990, 27 June 1990).

Republic Act No. 6683 seeks to cover and benefits regular, temporary, casual and emergency employees
who have rendered at least a total of two (2) consecutive years government service.

Resolution No. 87-104 of the CSC, 21 April 1987, provides:

WHEREAS, pursuant to Executive Order No. 966 dated June 22, 1984, the Civil Service
Commission is charged with the function of determining creditable services for retiring officers and
employees of the national government;

WHEREAS, Section 4 (b) of the same Executive Order No. 966 provides that all previous services by an
officer/employee pursuant to a duly approved appointment to a position in the Civil Service are considered
creditable services, while Section 6 (a) thereof states that services rendered on contractual, emergency or
casual status are non-creditable services;

WHEREAS, there is a need to clarify the aforesaid provisions inasmuch as some contractual, emergency
or casual employment are covered by contracts or appointments duly approved by the Commission.

NOW, therefore, the Commission resolved that services rendered on contractual, emergency or casual
status, irrespective of the mode or manner of payment therefor shall be considered as creditable for
retirement purposes subject to the following conditions: (emphasis provided)

1. These services are supported by approved appointments, official records and/or other
competent evidence. Parties/agencies concerned shall submit the necessary proof of said
services;

2. Said services are on full time basis and rendered prior to June 22, 1984, the effectivity date of Executive
Order No. 966; and

3. The services for the three (3) years period prior to retirement are continuous and fulfill the service
requirement for retirement.

What substantial differences exist, if any, between casual, emergency, seasonal, project, co-terminous or
contractual personnel? All are tenurial employees with no fixed term, non-career, and temporary. The 12
May 1989 CSC letter of denial 13 characterized herein petitioner's employment as co-terminous with the
NIA project which in turn was contractual in nature. The OSG says petitioner's status is co-terminous with
the Project. CSC Memorandum Circular No. 11, series of 1991 (5 April 1991) characterizes the status of a
co-terminous employee —

(3) Co-terminous status shall be issued to a person whose entrance in the service is characterized
by confidentiality by the appointing authority or that which is subject to his pleasure or co-existent
with his tenure.

The foregoing status (co-terminous) may be further classified into the following:

a) co-terminous with the project — When the appointment is co-existent with the duration
of a particular project for which purpose employment was made or subject to the availability
of funds for the same;
b) co-terminous with the appointing authority — when appointment is co-existent with the tenure of the
appointing authority.

c) co-terminous with the incumbent — when appointment is co-existent with the appointee, in that after the
resignation, separation or termination of the services of the incumbent the position shall be deemed
automatically abolished; and

d) co-terminous with a specific period, e.g. "co-terminous for a period of 3 years" — the appointment is for
a specific period and upon expiration thereof, the position is deemed abolished.

It is stressed, however, that in the last two classifications (c) and (d), what is termed co-terminous is the
position, and not the appointee-employee. Further, in (c) the security of tenure of the appointee is
guaranteed during his incumbency; in (d) the security of tenure is limited to a specific period.

A co-terminous employee is a non-career civil servant, like casual and emergency employees. We see no
solid reason why the latter are extended benefits under the Early Retirement Law but the former are not. It
will be noted that Rep. Act No. 6683 expressly extends its benefits for early retirement to regular, temporary,
casual and emergency employees. But specifically excluded from the benefits are uniformed personnel of
the AFP including those of the PC-INP. It can be argued that, expressio unius est exclusio alterius. The
legislature would not have made a specific enumeration in a statute had not the intention been to restrict
its meaning and confine its terms and benefits to those expressly mentioned 14 or casus omissus pro omisso
habendus est — A person, object or thing omitted from an enumeration must be held to have been omitted
intentionally. 15 Yet adherence to these legal maxims can result in incongruities and in a violation of the
equal protection clause of the Constitution.

The case of Fegurin, et al. v. NLRC, et al., 16 comes to mind where, workers belonging to a work pool, hired
and re-hired continuously from one project to another were considered non-project-regular and permanent
employees.

Petitioner Lydia Chua was hired and re-hired in four (4) successive projects during a span of fifteen (15)
years. Although no proof of the existence of a work pool can be assumed, her service record cannot be
disregarded.

Art. III, Sec. 1 of the 1987 Constitution guarantees: "No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal protection of the laws."

. . . In Felwa vs. Salas, L-26511, Oct. 29, 1966, We ruled that the equal protection clause applies
only to persons or things identically situated and does not bar a reasonable classification of the
subject of legislation, and a classification is reasonable where (1) it is based on substantial
distinctions which make real differences; (2) these are germane to the purpose of the law; (3) the
classification applies not only to present conditions but also to future conditions which are
substantially identical to those of the present; (4) the classification applies only to those who belong
to the same class. 17

Applying the criteria set forth above, the Early Retirement Law would violate the equal protection clause
were we to sustain respondents' submission that the benefits of said law are to be denied a class of
government employees who are similarly situated as those covered by said law. The maxim of Expressio
unius est exclusio alterius should not be the applicable maxim in this case but the doctrine of necessary
implication which holds that:

No statute can be enacted that can provide all the details involved in its application. There is always
an omission that may not meet a particular situation. What is thought, at the time of enactment, to
be an all-embracing legislation may be inadequate to provide for the unfolding events of the future.
So-called gaps in the law develop as the law is enforced. One of the rules of statutory construction
used to fill in the gap is the doctrine of necessary implication. The doctrine states that what is
 implied in a statute is as much a part thereof as that which is expressed. Every statute is
understood, by implication, to contain all such provisions as may be necessary to effectuate its
object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants,
including all such collateral and subsidiary consequences as may be fairly and logically inferred
from its terms. Ex necessitate legis. And every statutory grant of power, right or privilege is deemed
to include all incidental power, right or privilege. This is so because the greater includes the lesser,
expressed in the Maxim, in eo plus sit, simper inest et minus. 18

During the sponsorship speech of Congressman Dragon (re: Early Retirement Law), in response to
Congressman Dimaporo's interpellation on coverage of state university employees who are extended
appointments for one (1) year, renewable for two (2) or three (3) years, 19 he explained:

This Bill covers only those who would like to go on early retirement and voluntary separation. It is
irrespective of the actual status or nature of the appointment one received, but if he opts to retire
under this, then he is covered.

It will be noted that, presently Pending in Congress, is House Bill No. 33399 (a proposal to extend the scope
of the Early Retirement Law). Its wording supports the submission that Rep. Act No. 6683 indeed
overlooked a qualified group of civil servants. Sec. 3 of said House bill, on coverage of early retirement,
would provide:

Sec. 3. Coverage. — It will cover all employees of the national government, including government-
owned or controlled corporations, as well as the personnel of all local government units. The
benefits authorized under this Act shall apply to all regular, temporary, casual, emergency and
contractual employees, regardless of age, who have rendered at least a total of two (2) consecutive
years government service as of the date of separation. The term "contractual employees" as used
in this Act does not include experts and consultants hired by agencies for a limited period to perform
specific activities or services with definite expected output.

Uniformed personnel of the Armed Forces of the Philippines, including those of the PC-INP are excluded
from the coverage of this Act. (emphasis supplied)

The objective of the Early Retirement or Voluntary Separation Law is to trim the bureaucracy, hence,
vacated positions are deemed abolished upon early/voluntary retirement of their occupants. Will the
inclusion of co-terminous personnel (like the petitioner) defeat such objective? In their case, upon
termination of the project and separation of the project personnel from the service, the term of employment
is considered expired, the office functus officio. Casual, temporary and contractual personnel serve for
shorter periods, and yet, they only have to establish two (2) years of continuous service to qualify. This,
incidentally, negates the OSG's argument that co-terminous or project employment is inherently short-lived,
temporary and transient, whereas, retirement presupposes employment for a long period. Here, violation
of the equal protection clause of the Constitution becomes glaring because casuals are not even in the
plantilla, and yet, they are entitled to the benefits of early retirement. How can the objective of the Early
Retirement Law of trimming the bureaucracy be achieved by granting early retirement benefits to a group
of employees (casual) without plantilla positions? There would, in such a case, be no abolition of permanent
positions or streamlining of functions; it would merely be a removal of excess personnel; but the positions
remain, and future appointments can be made thereto.

Co-terminous or project personnel, on the other hand, who have rendered years of continuous service
should be included in the coverage of the Early Retirement Law, as long as they file their application prior
to the expiration of their term, and as long as they comply with CSC regulations promulgated for such
purpose. In this connection, Memorandum Circular No. 14, Series of 1990 (5 March 1990) implementing
Rep. Act No. 6850, 20 requires, as a condition to qualify for the grant of eligibility, an aggregate or total of
seven (7) years of government service which need not be continuous, in the career or non-career service,
whether appointive, elective, casual, emergency, seasonal, contractual or co-terminous including military
and police service, as evaluated and confirmed by the Civil Service Commission. 21 A similar regulation
should be promulgated for the inclusion in Rep. Act No. 6683 of co-terminous personnel who survive the
test of time. This would be in keeping with the coverage of "all social legislations enacted to promote the
physical and mental well-being of public servants"22 After all, co-terminous personnel, are also obligated to
the government for GSIS contributions, medicare and income tax payments, with the general disadvantage
of transience.

In fine, the Court believes, and so holds, that the denial by the respondents NIA and CSC of petitioner's
application for early retirement benefits under Rep. Act No. 6683 is unreasonable, unjustified, and
oppressive, as petitioner had filed an application for voluntary retirement within a reasonable period and
she is entitled to the benefits of said law. While the application was filed after expiration of her term, we can
give allowance for the fact that she originally filed the application on her own without the assistance of
counsel. In the interest of substantial justice, her application must be granted; after all she served the
government not only for two (2) years — the minimum requirement under the law but for almost fifteen (15)
years in four (4) successive governmental projects.

WHEREFORE, the petition is GRANTED.

Let this case be remanded to the CSC-NIA for a favorable disposition of petitioner's application for early
retirement benefits under Rep. Act No. 6683, in accordance with the pronouncements in this decision.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Cruz, Paras, Feliciano, Bidin, Griño-Aquino, Medialdea, Regalado,
Davide, Jr., Romero and Nocon, JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur but only insofar as our rulings are applied to RA 6683 applicants.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur but only insofar as our rulings are applied to RA 6683 applicants.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-37251 August 31, 1981

CITY OF MANILA and CITY TREASURER, petitioners-appellants,

vs.
JUDGE AMADOR E. GOMEZ of the Court of First Instance of Manila and ESSO PHILIPPINES, INC.,
respondents-appellees.

AQUINO, J.:

This case is about the legality of the additional one-half percent (½%) realty tax imposed by the City of
Manila.

Section 64 of the Revised Charter of Manila, Republic Act No. 409, which took effect on June 18, 1949,
fixes the annual realty tax at one and one-half percent (1-½ %).

On the other hand, section 4 of the Special Education Fund Law, Republic Act No. 5447, which took effect
on January 1, 1969, imposed "an annual additional tax of one per centum on the assessed value of real
property in addition to the real property tax regularly levied thereon under existing laws" but "the total real
property tax shall not exceed a maximum of three per centrum.

That maximum limit gave the municipal board of Manila the Idea of fixing the realty tax at three percent. So,
by means of Ordinance No. 7125, approved by the city mayor on December 26, 1971 and effective
beginning the third quarter of 1972, the board imposed an additional one-half percent realty tax. The
ordinance reads:

SECTION 1. An additional annual realty tax of one-half percent (1/2%), or in short a total of three
percent (3%) realty tax (1-½% pursuant to the Revised Charter of Manila; 1% per Republic Act No.
5447; and ½% per this Ordinance) on the assessed value ... is hereby levied and imposed.

Esso Philippines, Inc. paid under protest the sum of P16,092.69 as additional one-half percent realty tax
for the third quarter of 1972 on its land and machineries located in Manila.

On November 9, 1972, Esso filed a complaint in the Court of First Instance of Manila for the recovery of the
said amount. It contended that the additional one-half percent tax is void because it is not authorized by the
city charter nor by any law (Civil Case No. 88827).

After hearing, the trial court declared the tax ordinance void and ordered the city treasurer of Manila to
refund to Esso the said tax. The City of Manila and its treasurer appealed to this Court under Republic Act
No. 5440 (which superseded Rule 42 of the Rules of Court).

The only issue is the validity of the tax ordinance or the legality of the additional one-half percent realty tax.

The petitioners in their manifestation of March 17, 1981 averred that the said tax ordinance is still in force;
that Ordinance No. 7566, which was enacted on September 10, 1974, imposed a two percent tax on
commercial real properties (like the real properties of Esso and that that two percent tax plus the one
percent tax under the Special Education Fund Law gives a total of three percent realty tax on commercial
properties.
Esso Philippines, Inc., now Petrophil Corporation, in its manifestation of March 2, 1981, revealed that up to
this time it has been paying the additional one-half percent tax and that from 1975 to 1980 it paid the total
sum of P4,206,240.71 as three percent tax on its real properties.

In this connection, it is relevant to note that section 39(2) of the Real Property Tax Code, Presidential
Decree No. 464, which took effect on June 1, 1974, provides that a city council may, by ordinance, impose
a realty tax "of not less than one half of one percent but not more than two percent of the assessed value
of real property".

Section 41 of the said Code reaffirms the one percent tax on real property for the Special Education Fund
in addition to the basic two percent realty tax.

So, there is no question now that the additional one-half percent realty tax is valid under the Real Property
Tax Code. What is in controversy is the legality of the additional one-half percent realty tax for the two-year
period from the third quarter of 1972 up to the second quarter of 1974.

We hold that the doctrine of implications in statutory construction sustains the City of Manila's contention
that the additional one-half percent realty tax is sanctioned by the provision in section 4 of the Special
Education Fund Law that "the total real property tax shall not exceed a maximum of three per centum.

The doctrine of implications means that "that which is plainly implied in the language of a statute is as much
a part of it as that which is expressed" (In re McCulloch Dick, 38 Phil. 41, 45, 90; 82 C.J.S. 632, 73 Am Jur
2nd 404).

While the 1949 Revised Charter of Manila fixed the realty tax at one and a half percent, on the other hand,
the 1968 Special Education Fund Law definitively fixed three percent as the maximum real property tax of
which one percent would accrue to the Special Education Fund.

The obvious implication is that an additional one-half percent tax could be imposed by municipal
corporations. Inferentially, that law fixed at two percent the realty tax that would accrue to a city or
municipality.

And the fact that the 1974 Real Property Tax Code specifically fixes the real property tax at two percent
confirms the prior intention of the lawmaker to impose two percent as the realty tax proper. That was also
the avowed intention of the questioned ordinance.

In invalidating the ordinance, the trial court upheld the view of Esso Philippines, Inc, that the Special
Education Fund Law refers to a contingency where the application of the additional one percent realty tax
would have the effect of raising the total realty tax to more than three percent and that it cannot be construed
as an authority to impose an additional realty tax beyond the one percent fixed by the said law.

At first glance, that appears to be a specious or reasonable contention. But the fact remains that the city
charter fixed the realty tax at 1-½% and the later law, the Special Education Fund Law, provides for three
percent as the maximum realty tax of which one percent would be earmarked for the education fund.

The unavoidable inference is that the later law authorized the imposition of an additional one-half percent
realty tax since the contingency referred to by the complaining taxpayer would not arise in the City of Manila.

It is true, as contended by the taxpayer, that the power of a municipal corporation to levy a tax should be
expressly granted and should not be merely inferred. But in this case, the power to impose a realty tax is
not controverted. What is disputed is the amount thereof, whether one and one-half percent only or two
percent. (See sec. 2 of Rep. Act No. 2264.)

As repeatedly observed, section 4 of the Special Education Fund Law, as confirmed by the Real Property
Tax Code, in prescribing a total realty tax of three percent impliedly authorizes the augmentation by one-
half percent of the pre-existing one and one- half percent realty tax.
WHEREFORE, the decision of the trial court is reversed and set aside. The complaint of Esso Philippines,
Inc. for recovery of the realty tax paid under protest is dismissed. No costs.

SO ORDERED.

Barredo (Chairman), Concepcion Jr., Fernandez and De Castro, JJ., concur.

Justice Abad Santos is on leave.

Justice Fernandez was designated to sit in the Second Division.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 14129 July 31, 1962

PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
GUILLERMO MANANTAN, defendant-appellee.

Office of the Solicitor General for plaintiff-appellant.

Padilla Law Office for defendant-appellee.

REGALA, J.:

This is an appeal of the Solicitor General from the order of the Court of First Instance of Pangasinan
dismissing the information against the defendant.

The records show that the statement of the case and the facts, as recited in the brief of plaintiff-appellant,
is complete and accurate. The same is, consequently, here adopted, to wit:

In an information filed by the Provincial Fiscal of Pangasinan in the Court of First Instance of that Province,
defendant Guillermo Manantan was charged with a violation Section 54 of the Revised Election Code. A
preliminary investigation conducted by said court resulted in the finding a probable cause that the crime
charged as committed by defendant. Thereafter, the trial started upon defendant's plea of not guilty, the
defense moved to dismiss the information on the ground that as justice of the peace the defendant is one
of the officers enumerated in Section 54 of the Revised Election Code. The lower court denied the motion
to dismiss holding that a justice of the peace is within the purview Section 54. A second motion was filed
by defense counsel who cited in support thereof the decision of the Court of Appeals in People vs.
Macaraeg, (CA-G.R. No. 15613-R, 54 Off. Gaz., pp. 1873-76) where it was held that a justice of the peace
is excluded from the prohibition of Section 54 of the Revised Election Code. Acting on this second motion
to dismiss, the answer of the prosecution, the reply of the defense, and the opposition of the prosecution,
the lower court dismissed the information against the accused upon the authority of the ruling in the case
cited by the defense.

Both parties are submitting this case upon the determination of this single question of law: Is a justice the
peace included in the prohibition of Section 54 of the Revised Election Code?

Section 54 of the said Code reads:

No justice, judge, fiscal, treasurer, or assessor of any province, no officer or employee of the Army, no
member of the national, provincial, city, municipal or rural police force and no classified civil service officer
or employee shall aid any candidate, or exert any influence in any manner in a election or take part therein,
except to vote, if entitled thereto, or to preserve public peace, if he is a peace officer.

Defendant-appellee argues that a justice of the peace is not comprehended among the officers enumerated
in Section 54 of the Revised Election Code. He submits the aforecited section was taken from Section 449
of the Revised Administrative Code, which provided the following:

SEC. 449. Persons prohibited from influencing elections. — No judge of the First Instance, justice of the
peace, or treasurer, fiscal or assessor of any province and no officer or employee of the Philippine
Constabulary, or any Bureau or employee of the classified civil service, shall aid any candidate or exert
influence in any manner in any election or take part therein otherwise than exercising the right to vote.
When, therefore, section 54 of the Revised Election Code omitted the words "justice of the peace," the
omission revealed the intention of the Legislature to exclude justices of the peace from its operation.

The above argument overlooks one fundamental fact. It is to be noted that under Section 449 of the Revised
Administrative Code, the word "judge" was modified or qualified by the phrase "of First instance", while
under Section 54 of the Revised Election Code, no such modification exists. In other words, justices of the
peace were expressly included in Section 449 of the Revised Administrative Code because the kinds of
judges therein were specified, i.e., judge of the First Instance and justice of the peace. In Section 54,
however, there was no necessity therefore to include justices of the peace in the enumeration because the
legislature had availed itself of the more generic and broader term, "judge." It was a term not modified by
any word or phrase and was intended to comprehend all kinds of judges, like judges of the courts of First
Instance, Judges of the courts of Agrarian Relations, judges of the courts of Industrial Relations, and
justices of the peace.

It is a well known fact that a justice of the peace is sometimes addressed as "judge" in this jurisdiction. It is
because a justice of the peace is indeed a judge. A "judge" is a public officer, who, by virtue of his office, is
clothed with judicial authority (U.S. v. Clark, 25 Fed. Cas. 441, 422). According to Bouvier Law Dictionary,
"a judge is a public officer lawfully appointed to decide litigated questions according to law. In its most
extensive sense the term includes all officers appointed to decide litigated questions while acting in that
capacity, including justices of the peace, and even jurors, it is said, who are judges of facts."

A review of the history of the Revised Election Code will help to justify and clarify the above conclusion.

The first election law in the Philippines was Act 1582 enacted by the Philippine Commission in 1907, and
which was later amended by Act. Nos. 1669, 1709, 1726 and 1768. (Of these 4 amendments, however,
only Act No. 1709 has a relation to the discussion of the instant case as shall be shown later.) Act No. 1582,
with its subsequent 4 amendments were later on incorporated Chapter 18 of the Administrative Code. Under
the Philippine Legislature, several amendments were made through the passage of Acts Nos. 2310, 3336
and 3387. (Again, of these last 3 amendments, only Act No. 3587 has pertinent to the case at bar as shall
be seen later.) During the time of the Commonwealth, the National Assembly passed Commonwealth Act
No. 23 and later on enacted Commonwealth Act No. 357, which was the law enforced until June 1947,
when the Revised Election Code was approved. Included as its basic provisions are the provisions of
Commonwealth Acts Nos. 233, 357, 605, 666, 657. The present Code was further amended by Republic
Acts Nos. 599, 867, 2242 and again, during the session of Congress in 1960, amended by Rep. Acts Nos.
3036 and 3038. In the history of our election law, the following should be noted:

Under Act 1582, Section 29, it was provided:

No public officer shall offer himself as a candidate for elections, nor shall he be eligible during the time that
he holds said public office to election at any municipal, provincial or Assembly election, except for reelection
to the position which he may be holding, and no judge of the First Instance, justice of the peace, provincial
fiscal, or officer or employee of the Philippine Constabulary or of the Bureau of Education shall aid any
candidate or influence in any manner or take part in any municipal, provincial, or Assembly election under
the penalty of being deprived of his office and being disqualified to hold any public office whatsoever for a
term of 5 year: Provide, however, That the foregoing provisions shall not be construe to deprive any person
otherwise qualified of the right to vote it any election." (Enacted January 9, 1907; Took effect on January
15, 1907.)

Then, in Act 1709, Sec. 6, it was likewise provided:

. . . No judge of the First Instance, Justice of the peace provincial fiscal or officer or employee of the Bureau
of Constabulary or of the Bureau of Education shall aid any candidate or influence in any manner to take
part in any municipal provincial or Assembly election. Any person violating the provisions of this section
shall be deprived of his office or employment and shall be disqualified to hold any public office or
employment whatever for a term of 5 years, Provided, however, that the foregoing provisions shall not be
construed to deprive any person otherwise qualified of the right to vote at any election. (Enacted on August
31, 1907; Took effect on September 15, 1907.)

Again, when the existing election laws were incorporated in the Administrative Code on March 10, 1917,
the provisions in question read:

SEC. 449. Persons prohibited from influencing elections. — No judge of the First Instance, justice of the
peace, or treasurer, fiscal or assessor of any province and no officer or employee of the Philippine
Constabulary or any Bureau or employee of the classified civil service, shall aid any candidate or exert
influence in any manner in any election or take part therein otherwise than exercising the right to vote.
(Emphasis supplied)

After the Administrative Code, the next pertinent legislation was Act No. 3387. This Act reads:

SEC. 2636. Officers and employees meddling with the election. — Any judge of the First Instance, justice
of the peace, treasurer, fiscal or assessor of any province, any officer or employee of the Philippine
Constabulary or of the police of any municipality, or any officer or employee of any Bureau of the classified
civil service, who aids any candidate or violated in any manner the provisions of this section or takes part
in any election otherwise by exercising the right to vote, shall be punished by a fine of not less than P100.00
nor more than P2,000.00, or by imprisonment for not less than 2 months nor more than 2 years, and in all
cases by disqualification from public office and deprivation of the right of suffrage for a period of 5 years.
(Approved December 3, 1927.) (Emphasis supplied.)

Subsequently, however, Commonwealth Act No. 357 was enacted on August 22, 1938. This law provided
in Section 48:

SEC. 48. Active Interventation of Public Officers and Employees. — No justice, judge, fiscal, treasurer or
assessor of any province, no officer or employee of the Army, the Constabulary of the national, provincial,
municipal or rural police, and no classified civil service officer or employee shall aid any candidate, nor
exert influence in any manner in any election nor take part therein, except to vote, if entitled thereto, or to
preserve public peace, if he is a peace officer.

This last law was the legislation from which Section 54 of the Revised Election Code was taken.

It will thus be observed from the foregoing narration of the legislative development or history of Section 54
of the Revised Election Code that the first omission of the word "justice of the peace" was effected in Section
48 of Commonwealth Act No. 357 and not in the present code as averred by defendant-appellee. Note
carefully, however, that in the two instances when the words "justice of the peace" were omitted (in Com.
Act No. 357 and Rep. Act No. 180), the word "judge" which preceded in the enumeration did not carry the
qualification "of the First Instance." In other words, whenever the word "judge" was qualified by the phrase
"of the First Instance", the words "justice of the peace" would follow; however, if the law simply said "judge,"
the words "justice of the peace" were omitted.

The above-mentioned pattern of congressional phraseology would seem to justify the conclusion that when
the legislature omitted the words "justice of the peace" in Rep. Act No. 180, it did not intend to exempt the
said officer from its operation. Rather, it had considered the said officer as already comprehended in the
broader term "judge".

It is unfortunate and regrettable that the last World War had destroyed congressional records which might
have offered some explanation of the discussion of Com. Act No. 357 which legislation, as indicated above,
has eliminated for the first time the words "justice of the peace." Having been completely destroyed, all
efforts to seek deeper and additional clarifications from these records proved futile. Nevertheless, the
conclusions drawn from the historical background of Rep. Act No. 180 is sufficiently borne out by reason
hid equity.
Defendant further argues that he cannot possibly be among the officers enumerated in Section 54 inasmuch
as under that said section, the word "judge" is modified or qualified by the phrase "of any province." The
last mentioned phrase, defendant submits, cannot then refer to a justice of the peace since the latter is not
an officer of a province but of a municipality.

Defendant's argument in that respect is too strained. If it is true that the phrase "of any province" necessarily
removes justices of the peace from the enumeration for the reason that they are municipal and not provincial
officials, then the same thing may be said of the Justices of the Supreme Court and of the Court of Appeals.
They are national officials. Yet, can there be any doubt that Justices of the Supreme Court and of the Court
of Appeals are not included in the prohibition? The more sensible and logical interpretation of the said
phrase is that it qualifies fiscals, treasurers and assessors who are generally known as provincial officers.

The rule of "casus omisus pro omisso habendus est" is likewise invoked by the defendant-appellee. Under
the said rule, a person, object or thing omitted from an enumeration must be held to have been omitted
intentionally. If that rule is applicable to the present, then indeed, justices of the peace must be held to have
been intentionally and deliberately exempted from the operation of Section 54 of the Revised Election Code.

The rule has no applicability to the case at bar. The maxim "casus omisus" can operate and apply only if
and when the omission has been clearly established. In the case under consideration, it has already been
shown that the legislature did not exclude or omit justices of the peace from the enumeration of officers
precluded from engaging in partisan political activities. Rather, they were merely called by another term. In
the new law, or Section 54 of the Revised Election Code, justices of the peace were just called "judges."

In insisting on the application of the rule of "casus omisus" to this case, defendant-appellee cites authorities
to the effect that the said rule, being restrictive in nature, has more particular application to statutes that
should be strictly construed. It is pointed out that Section 54 must be strictly construed against the
government since proceedings under it are criminal in nature and the jurisprudence is settled that penal
statutes should be strictly interpreted against the state.

Amplifying on the above argument regarding strict interpretation of penal statutes, defendant asserts that
the spirit of fair play and due process demand such strict construction in order to give "fair warning of what
the law intends to do, if a certain line is passed, in language that the common world will understand."
(Justice Holmes, in McBoyle v. U.S., 283 U.S. 25, L. Ed. 816).

The application of the rule of "casus omisus" does not proceed from the mere fact that a case is criminal in
nature, but rather from a reasonable certainty that a particular person, object or thing has been omitted
from a legislative enumeration. In the present case, and for reasons already mentioned, there has been no
such omission. There has only been a substitution of terms.

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. This has been recognized time and again by decisions of various
courts. (3 Sutherland, Statutory Construction, p. 56.) Thus, cases will frequently be found enunciating the
principle that the intent of the legislature will govern (U.S. vs. Corbet, 215 U.S. 233). It is to be noted that a
strict construction should not be permitted to defeat the policy and purposes of the statute (Ash Sheep Co.
v. U.S., 252 U.S. 159). The court may consider the spirit and reason of a statute, as in this particular
instance, where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear
purpose of the law makers (Crawford, Interpretation of Laws, Sec. 78, p. 294). A Federal District court in
the U.S. has well said:

The strict construction of a criminal statute does not mean such construction of it as to deprive it of the
meaning intended. Penal statutes must be construed in the sense which best harmonizes with their intent
and purpose. (U.S. v. Betteridge 43 F. Supp. 53, 56, cited in 3 Sutherland Statutory Construction 56.)
As well stated by the Supreme Court of the United States, the language of criminal statutes, frequently, has
been narrowed where the letter includes situations inconsistent with the legislative plan (U.S. v. Katz, 271
U.S. 354; See also Ernest Brunchen, Interpretation of the Written Law (1915) 25 Yale L.J. 129.)

Another reason in support of the conclusion reached herein is the fact that the purpose of the statute is to
enlarge the officers within its purview. Justices of the Supreme Court, the Court of Appeals, and various
judges, such as the judges of the Court of Industrial Relations, judges of the Court of Agrarian Relations,
etc., who were not included in the prohibition under the old statute, are now within its encompass. If such
were the evident purpose, can the legislature intend to eliminate the justice of the peace within its orbit?
Certainly not. This point is fully explained in the brief of the Solicitor General, to wit:

On the other hand, when the legislature eliminated the phrases "Judge of First Instance" and justice of the
peace", found in Section 449 of the Revised Administrative Code, and used "judge" in lieu thereof, the
obvious intention was to include in the scope of the term not just one class of judges but all judges, whether
of first Instance justices of the peace or special courts, such as judges of the Court of Industrial Relations.
....

The weakest link in our judicial system is the justice of the peace court, and to so construe the law as to
allow a judge thereof to engage in partisan political activities would weaken rather than strengthen the
judiciary. On the other hand, there are cogent reasons found in the Revised Election Code itself why justices
of the peace should be prohibited from electioneering. Along with Justices of the appellate courts and
judges of the Court of First Instance, they are given authority and jurisdiction over certain election cases
(See Secs. 103, 104, 117-123). Justices of the peace are authorized to hear and decided inclusion and
exclusion cases, and if they are permitted to campaign for candidates for an elective office the impartiality
of their decisions in election cases would be open to serious doubt. We do not believe that the legislature
had, in Section 54 of the Revised Election Code, intended to create such an unfortunate situation. (pp. 708,
Appellant's Brief.)

Another factor which fortifies the conclusion reached herein is the fact that the administrative or executive
department has regarded justices of the peace within the purview of Section 54 of the Revised Election
Code.

In Tranquilino O. Calo, Jr. v. The Executive Secretary, the Secretary of Justice, etc. (G.R. No. L-12601),
this Court did not give due course to the petition for certiorari and prohibition with preliminary injunction
against the respondents, for not setting aside, among others, Administrative Order No. 237, dated March
31, 1957, of the President of the Philippines, dismissing the petitioner as justice of the peace of Carmen,
Agusan. It is worthy of note that one of the causes of the separation of the petitioner was the fact that he
was found guilty in engaging in electioneering, contrary to the provisions of the Election Code.

Defendant-appellee calls the attention of this Court to House Bill No. 2676, which was filed on January 25,
1955. In that proposed legislation, under Section 56, justices of the peace are already expressly included
among the officers enjoined from active political participation. The argument is that with the filing of the said
House Bill, Congress impliedly acknowledged that existing laws do not prohibit justices of the peace from
partisan political activities.

The argument is unacceptable. To begin with, House Bill No. 2676 was a proposed amendment to Rep.
Act No. 180 as a whole and not merely to section 54 of said Rep. Act No. 180. In other words, House Bill
No. 2676 was a proposed re-codification of the existing election laws at the time that it was filed. Besides,
the proposed amendment, until it has become a law, cannot be considered to contain or manifest any
legislative intent. If the motives, opinions, and the reasons expressed by the individual members of the
legislature even in debates, cannot be properly taken into consideration in ascertaining the meaning of a
statute (Crawford, Statutory Construction, Sec. 213, pp. 375-376), a fortiori what weight can We give to a
mere draft of a bill.
On law reason and public policy, defendant-appellee's contention that justices of the peace are not covered
by the injunction of Section 54 must be rejected. To accept it is to render ineffective a policy so clearly and
emphatically laid down by the legislature.

Our law-making body has consistently prohibited justices of the peace from participating in partisan politics.
They were prohibited under the old Election Law since 1907 (Act No. 1582 and Act No. 1709). Likewise,
they were so enjoined by the Revised Administrative Code. Another which expressed the prohibition to
them was Act No. 3387, and later, Com. Act No. 357.

Lastly, it is observed that both the Court of Appeals and the trial court applied the rule of "expressio unius,
est exclusion alterius" in arriving at the conclusion that justices of the peace are not covered by Section 54.
Said the Court of Appeals: "Anyway, guided by the rule of exclusion, otherwise known as expressio unius
est exclusion alterius, it would not be beyond reason to infer that there was an intention of omitting the term
"justice of the peace from Section 54 of the Revised Election Code. . . ."

The rule has no application. If the legislature had intended to exclude a justice of the peace from the purview
of Section 54, neither the trial court nor the Court of Appeals has given the reason for the exclusion. Indeed,
there appears no reason for the alleged change. Hence, the rule of expressio unius est exclusion alterius
has been erroneously applied. (Appellant's Brief, p. 6.)

Where a statute appears on its face to limit the operation of its provisions to particular persons or things by
enumerating them, but no reason exists why other persons or things not so enumerated should not have
been included, and manifest injustice will follow by not so including them, the maxim expressio unius est
exclusion alterius, should not be invoked. (Blevins v. Mullally 135 p. 307, 22 Cal. App. 519.) .

FOR THE ABOVE REASONS, the order of dismissal entered by the trial court should be set aside and this
case is remanded for trial on the merits.

Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Barrera and Makalintal, JJ., concur.
Padilla and Dizon, JJ., took no part.
Reyes, J.B.L., J., is on leave.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-33140 October 23, 1978

J. M. TUASON & CO., INC., JOSE M. TUASON, NICASIO A. TUASON, TERESA TUASON, CELSO S.
TUASON and SEVERO A. TUASON, petitioners,
vs.
HON. HERMINIO C. MARIANO, Presiding Judge of the Court of First Instance of Rizal MANUELA
AQUIAL, MARIA AQUIAL, Spouses JOSE M. CORDOVA and SATURNINA C. CORDOVA, respondents.

Sison Law Office and Senensio O. Ortile for petitioners.

Hill & Associates Law Office for respondents Aquials.

Antonio E. Pesigan for respondents Cordovas.

AQUINO, J.:

This is another litigation regarding the validity of the much controverted Original Certificate of Title No. 735
covering the Santa Mesa and D Estates of the Tuason mayorazgo or Entail with areas of 877 (879) and
1,625 hectares, respectively (Barrette vs. Tuason, 50 Phil. 888; Benin case, infra).

On October 1, 1965, Manuela Aquial and Maria Aquial filed a complaint in forma pauperis in the Court of
First Instance of Rizal Pasig Branch X, wherein they prayed that they be declared the owners of a parcel
of land located at Balara, Marikina, Rizal (now Quezon City) and bounded on the north by Sapang Mapalad,
on the south by the land of Eladio, Tiburcio on the east by Sapang Kolotkolotan, and on the west by Sapang
Kuliat The land, which has an area of three hundred eighty-three quiñones was allegedly acquired by their
father by means of a Spanish title issued to him on May 10, 1877 (Civil Case No. 8943).

They alleged that sometime in 1960, or after J. M. Tuason & Co., Inc. had illegally entered upon that land,
they discovered that it had been fraudulently or erroneously included in OCT No. 735 of the Registry of
Deeds of Rizal and that it was registered in the names of defendants Mariano, Teresa, Juan, Demetrio and
Augusta all surnamed Tuason pursuant to a decree issued on July 6. 1914 in Case No. 7681 of the Court
of Land Registration.

They further alleged that transfer certificates of title, derived from OCT No. 735, were issued to defendants
J. M. Tuason & Co., Inc., University of the Philippines and National Waterworks and Sewerage Authority
(Nawasa) which leased a portion of its land to defendant Capitol Golf Club.

Plaintiffs Aquial prayed that OCT No. 735 and the titles derived therefrom be declared void due to certain
irregularities in the land registration proceeding. They asked for damages.

Defendant J.M. Tuason & Co., Inc. filed a motion to dismiss on the grounds of lack of jurisdiction, improper
venue, prescription, laches and prior judgment. The plaintiffs opposed that motion. The lower court denied
it. The grounds of the motion to dismiss were pleaded as affirmative defenses in the answer of defendants
Tuason and J. M. Tuason & Co., Inc. They insisted that a preliminary hearing be held on those defenses.

On January 25, 1967, the spouses Jose M. Cordova and Saturnina C. Cordova, who had bought eleven
hectares of the disputed land from the plaintiffs, were allowed to intervene in the case.
On September 5, 1970, the lower court issued an order requiring the parties the Register of Deeds of Rizal
to produce in court on October 16, 1970 OCT No. 735 and certain transfer certificates of title derived from
that first or basic title. Later, the court required the production in court of the plan of the land covered by
OCT No. 735 allegedly for the purpose of determining whether the lands claimed by the plaintiffs and the
intervenors are included therein.

On February 11, 1971, the Tuason and J. M. Tuason & Co., Inc. filed the instant civil actions of certiorari
and prohibition praying, inter alia, that the trial court be ordered to dismiss the complaint and enjoined from
proceeding in the said case. After the petitioners had filed the proper bond, a writ of preliminary injunction
was issued. Respondents Aquial and Cordova answered the petition. The parties, except the Aquials, filed
memoranda in lieu of oral argument.

The issue is whether OCT No. 735 and the titles derived therefrom can be questioned at this late hour by
respondents Aquial and Cordova. The supposed irregularities in the land registration proceeding, which led
to the issuance of the decree upon which OCT. No. 735 was based, are the same issues raised in Civil
Cases Nos. 3621, 3622 and 3623 of the lower court. The 1965 decision of Judge Eulogio Mencias in those
cases, in validating OCT No. 735, is annexed to the complaint of the Aquials. It is cited by them to support
their support their action and it might have encouraged them to ventilate their action in court.

On appeal to this Court, that decision was reversed and the validity of OCT No. 735 and the titles derived
therefrom was once more upheld. (Benin vs. Tuason, L-26127, Alcantara vs. Tuason, L-26128 and Pili vs.
Tuason, L-26129, all decided on June 28, 1974, 57 SCRA 531).

The ruling in the Benin, Alcantara and Pili cases was applied in Mara, Inc. vs. Estrella, L-40511, July 25,
1975, 65 SCRA 471. That ruling is simply a reiteration or confirmation of the holding in the following cases
directly or incidentally sustaining OCT No. 735: Bank of the P. I. vs. Acuña, 59 Phil. 183; Tiburcio vs. PHHC,
106 Phil. 447; Galvez and Tiburcio vs. Tuason y de la Paz, 119 Phil. 612; Alcantara vs. Tuason, 92 Phil.
796; Santiago vs. J. M. Tuason & Co., Inc. 110 Phil. 16; J. M. Tuason & Co., Inc. vs. Bolaños, 95 Phil. 106;
J. M. Tuason & Co., Inc. vs. Santiago, 99 Phil. 615; J. M. Tuason & Co., Inc. vs. De Guzman, 99 Phil. 281;
J. M. Tuason & Co., Inc. vs. Aguirre, 117 Phil. 110; J. M. Tuason & Co., Inc. vs. Macalindong, 116 Phil.
1227; J. M. Tuason & Co., Inc. vs. Magdangal, 114 Phil. 42; Varsity Hills, Inc. vs. Navarro, L-30889,
February 29, 1972, 43 SCRA 503, and People's Homesite and Housing Corporation vs. Mencias, L-24114,
August 16, 1967, 20 SCRA 1031.

Considering the governing principle of stare decisis et non quieta movere (follow past precedents and do
not disturb what has been settled) it becomes evident that respondents Aquial and Cordova cannot maintain
their action in Civil Case No. 8943 without eroding the long settled holding of the courts that OCT No. 735
is valid and no longer open to attack.

It is against public policy that matters already decided on the merits be relitigated again and again,
consuming the court's time and energies at the expense of other litigants: Interest rei publicae ut finis sit
litium." (Varsity Hills, Inc. vs. Navarro, supra).

Finding the petition for certiorari and prohibition to be meritorious, the trial court is directed to dismiss Civil
Case No. 8943 with prejudice and without costs. No costs.

SO ORDERED.

Barredo (Actg. Chairman), Antonio, Concepcion Jr., and Santos, JJ., concur.

Fernando, J, took no part.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 210164 August 18, 2015

ROMMEL C. ARNADO, Petitioner,

vs.
COMMISSION ON ELECTIONS and FLORANTE CAPITAN, Respondents,

CONCURRING OPINION

SERENO, CJ:

In Moy Ya Lim Yao v. Commissioner of Immigration, 1 we emphasized the variable nature of a person's
citizenship, which cannot be determined with finality or become the basis of rules that can be applied to
any and all proceedings thereafter. We said:

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 as res adjudicata, hence it has to be threshed out again and again as the occasion
may demand. 2

In election contests, this pronouncement gains significance, as elective local officials are constitutionally
allowed to run and serve for three consecutive terms. 3 While citizenship is a continuing requirement that
must be possessed not only at the time of election or assumption of office, but also during the entire tenure
of the official,4 it is not a continuing disqualification to run for and hold public office. 5

As such, each case involving the question of an elective official's citizenship must be treated anew in
accordance with the surrounding relevant facts and applicable laws.

In this regard, I agree with some of the statements of J Brion in his Dissenting Opinion. Indeed, the Court's
ruling in Maquiling v. COMELEc6 went only so far as to determine whether Rommel C. Arnado (Amado)
was qualified to run for public office in the 2010 elections. It did not operate as, nor was it intended to be, a
final determination of Amado's citizenship that would forever derail his career as a public official.

In Maquiling, we reiterated that natural-born citizens of the Philippines who have lost their citizenship by
reason of their naturalization as citizens of a foreign country may qualify to run for public office upon taking
the Oath of Allegiance 7 and making a sworn renunciation of their foreign citizenship. 8 Arnado subjected his
citizenship to attack when he continued to use his United States (US) passport to travel in and out of the
country despite previously renouncing his US citizenship. The Court ruled that his use of his US passport
nullified the effect of his previous renunciation of US citizenship. While he did not lose his Philippine
citizenship in the process, he reverted to his status as a dual citizen and remained as such at the time that
he filed his Certificate of Candidacy for the position of mayor of Kauswagan, Lanao del Norte in the 2010
elections. Under Section 40(d) of the Local Government Code, those with dual citizenship are disqualified
from running for any elective local position.

Considering that the Court had pinpointed the defect in Amado's oath of renunciation, the simple act of
taking the oath anew would have been enough compliance with the requirement of the law.

The Decision found that from the time Amado used his US passport to travel in and out of the country up
to the filing of his Certificate of Candidacy for the succeeding elections in 2013, there had been no change
in his circumstances. 9 He still had not made a sworn renunciation of his US citizenship. Thus, the ruling in
Maquiling still applies: that Arnado had dual citizenship when he filed for his candidacy on 1 October 2012.
It did not matter that Maquiling was promulgated months after Arnado had filed for candidacy. Since he was
not totally unaware that the use of his US passport might have adverse consequences on his candidacy for
the 2013 elections, the Decision concludes that he should have been prudent enough to remedy whatever
defect there might have been in his citizenship.10

Even J. Brion concedes that Amado could have been more circumspect in order to secure his qualification
to run for public office. 11 However, it is insisted that the members of this Court should remove the present
case from the shadow of Maquiling and arrive at its resolution based merely on the attendant factual and
legal considerations specific to it.12

It cannot be denied that by virtue of its being a decision of the Court that joins the country's body of laws
as jurisprudence, Maquiling serves as a "legal consideration" in the resolution of the present case.
Maquiling' s application cannot be helped, especially since the Decision therein hinged not only on relevant
laws, but largely on the facts then presented before the Court. Thus, while the legal conclusion in Maquiling
was not a final determination of Amado's citizenship - as it applied only for purposes of the 2010 elections
- the facts on which its legal conclusion was founded cannot be totally ignored.

A person's citizenship may be "threshed out again and again" 13 in every proceeding as long as it becomes
relevant and necessary. Except for some clearly unmeritorious cases, it is always a good idea to decide on
the merits, especially in election controversies in which the law is sometimes placed at odds with the will of
the people. At the same time, the Court puts a premium on economy, and where previous declarations of
one's citizenship become pertinent, those cases may be used as a take-off point if only to emphasize the
differences and similarities, as well as the measures that were taken in the interim.

One point of contention between the Decision and the Dissenting Opinion is the finding that Arnado used
his US passport for his travels in and out of the country on 12 January 2010 and 23 March 2010.

One point of contention between the Decision and the Dissenting Opinion is the finding that Arnado used
his US passport for his travels in and out of the country on 12 January 2010 and 23 March 2010.

Maquiling indeed made a finding that Arnado used his US passport for travel on those dates. In the Court
Resolution dated 2 July 2013, we said:

Well-settled is the rule that findings of fact of administrative bodies will not be interfered with by the courts
in the absence of grave abuse of discretion on the part of said agencies, or unless the aforementioned
findings are not supported by substantial evidence.1âwphi1 They are accorded not only great respect but
even finality, and are binding upon this Court, unless it is shown that the administrative body had arbitrarily
disregarded or misapprehended evidence before it to such an extent as to compel a contrary conclusion
had such evidence been properly appreciated.

Nevertheless, it must be emphasized that COMELEC First

Division found that Arnado used his U.S. Passport at least six times after he renounced his American
citizenship. This was debunked by the COMELEC En Banc, which found that Arnado only used his U.S.
passport four times, and which agreed with Amado's claim that he only used his U.S. passport on those
occasions because his Philippine passport was not yet issued. The COMELEC En Banc argued that Amado
was able to prove that he used his Philippine passport for his travels on the following dates: 12 January
2010, 31 January 2010, 31 March 2010, 16 April 2010, 20 May 2010, and 4 June 2010.

None of these dates coincide with the two other dates indicated in the certification issued by the Bureau of
Immigration showing that on 21 January 2010 and on 23 March 2010, Arnado arrived in the Philippines
using his U.S. Passport No. 057782700 which also indicated therein that his nationality is USA-American.
Adding these two travel dates to the travel record provided by the Bureau of Immigration showing that
Arnado also presented his U.S. passport four times (upon departure on 14 April 2009, upon arrival on 25
June 2009, upon departure on 29 July 2009 and upon arrival on 24 November 2009), these incidents sum
up to six.

The COMELEC En Banc concluded that "the use of the US passport was because to his knowledge, his
Philippine passport was not yet issued to him for his use." This conclusion, however, is not supported by
the facts. Arnado claims that his Philippine passport was issued on 18 June 2009. The records show that
he continued to use his U.S. passport even after he already received his Philippine passport. Arnado's
travel records show that he presented his U.S. passport on 24 November 2009, on 21 January 2010, and
on 23 March 2010. These facts were never refuted by Arnado.

Thus, the ruling of the COMELEC En Banc is based on a misapprehension of the facts that the use of the
U.S. passport was discontinued when Amado obtained his Philippine passport.14 (Emphases supplied)

It is important to clarify that the certification from the Bureau of Immigration indicated that Amado arrived in
the country using his US passport on 12 January 2010 and 23 March 2010. 15 The Court gave full credence
to the certification, not only because it carried with it the presumption of regularity, but more important,
Arnado never bothered to refute the contents thereof.

On the basis of this finding, the Court rejected the claim that Amado's use of his US passport several times
were mere isolated acts that were done only because he was not yet issued his Philippine passport. 16

To my mind, this is the turning point of Maquiling that regrettably still applies in this case: that whatever
professions of faith and allegiance to the Republic that Amado claims when his citizenship is in question,
the fact remains that during the instances that he used his US passport despite having a Philippine passport
in his possession, those same professions became hollow. And, that up to the filing of Amado's Certificate
of Candidacy for the 2013 elections, he failed to remedy the fatal blow that such repeated use of his US
passport dealt on his electoral qualifications.

I therefore concur with the DISMISSAL of the PETITION.

MARIA LOURDES P.A. SERENO

Chief Justice

DISSENTING OPINION

BRION, J.:

The present certiorari petition,1filed under Rule 64 in relation with Rule 65 of the Rules of Court, involves
the disqualification of the present petitioner, Rommel C. Amado (Arnado), in the May 13, 2013 National and
Local Elections (May 2013 Elections).

This case traces its roots to the earlier disqualification case [docketed as SPA No . .J0-109 (DC)] filed
against Amado in relation with the May 10, 2010 Elections, that led to the Court's decision in Maquiling v.
Comelec disqualifying Arnado.2To some extent, the present case is factually linked to the earlier
disqualification case.

As in Maquiling, Amado and his qualification to run for public office are at the center of the present petition.
Private re8pondent Florante Capitan seeks to strengthen the linkage with the earlier Maquiling case by
adopting the Maquiling positions and considering the present case as a seamless continuation of Maquiling.

Despite some commonalities, the present disqualification case, however, is separate and substantively
distinct from the Maquiling disqualification case. The present case involves an election period (2013)
separate and distinct from the election period covered by the Maquiling ruling (2010). The factual
circumstances and consequent legal considerations also vary, as will be explained below, so that the
present case need not necessarily follow the governing ruling in Maquiling.
Thus, at the outset, I invite the Court: to keep an open mind and remove any initial impression that the
present case is a re-run of Maquiling; to recognize that at some point, the present case diverges from and
must be viewed independently of Maquiling; and to resolve it from the perspective solely of the attendant
factual and legal considerations specific to it.

The Court must not also forget that this is an election case where the electorate has its own separate
interest to protect. This is an interest that the Court must not ignore when the issues posed carry the
potential of setting aside the electorate's expressed choice.

Notably, the present controversy involves .a candidate whose disqualification (to run for elective office) has
twice been sought based on the same cited facts and grounds, but who nevertheless has twice been elected
by a clear and overwhelming majority of the voters - in the May 2010 and May 2013 Elections. In 2013, he
garnered 84% of the votes of the people of Kauswagan.

This clear and undeniably overwhelming voice of the electorate, to my mind, renders it necessary for the
Court to consider and apply deeper democratic principles. 3 The circumstances of the present controversy
call for this kind of consideration, particularly when the electorate's already limited democratic decision
making process runs the risk of being negated for no clear and conclusive reason, as discussed below.

To disregard the electorate's voice once can perhaps be excused by invoking the rule of law; to ignore the
people's voice a second time can only be justified by clear reasons from this Court that the people can
readily understand.

I submit this Dissenting Opinion to object to the ponencia's conclusion that Arnado is disqualified
from running in the May 2013 Elections and that his proclamation as elected Mayor of Kauswagan,
Lanao del Norte, should now be set aside.

I specifically find the ponencia 's conclusions grossly erroneous and tainted with grave abuse of discretion
based on the following considerations:

(1) Amado became a "pure" Philippine citizen on April 3, 2009, after he took his oath of allegiance and
executed his affidavit of renunciation. That he was subsequently deemed to have recanted his renunciation
is unfortunate, but even the Maquiling ruling recognizes that for some eleven (11) days (i.e., from April 3 to
14, 2009), he was qualified to run for public office because he was a "pure" Filipino.

Arnado more than reconfirmed and regained this status and was qualified to run for public office in the May
2013 Elections based on his persistent assertions of sole allegiance to the Republic and his repeated
renunciation of his US citizenship.

a. Separately from the April 3, 2009 Affidavit of Renunciation that Maquiling said Amado recanted,
Arnado executed on May 9, 2013, another Affidavit of Renunciation affirming the terms of his April
3, 2009 Affidavit and thus cured any defect in his qualification to run in the May 2013 Elections.

(2) The legal consequences of the Maquiling ruling is limited to Arado's qualification for public office in the
May 2010 elections.

a. The intervening 2010 Maquiling disqualification ruling did not and could not have invalidated
Arnado's status as a "pure" Philippine citizen who was qualified to run for public office after having
complied with the RA No. 9225 requirements in the May 2013 Elections.

(3) The Comelec gravely abused its discretion in ruling that the May 9, 2013 Confirmation of the Oath of
Affirmation was filed out of time.

a. The Comelec grossly failed to consider (i) the circumstances of the filing of the October 1, 2012
Certificate of Candidacy (CoC), and (ii) the circumstances and the dynamics between the 2010
 Maquiling case and ruling, and the present 2013 disqualification case, in terms of the retroactive
application of the Maquiling ruling.

b. When Amado filed his CoC on October 1, 2012 (for the 2013 Elections), the prevailing Comelec en bane
ruling [in its February 2, 2011 resolution in SPA No. 10-109 (DC)] was that he was not disqualified to run
for elective public office; hence, Amado did not need to execute another affidavit of renunciation.

c. Based solely on the Maquiling Decision (that pertained to Arnado's disqualification for the 2010 elections),
the Comelec disqualified Arnado for the May 2013 elections because his October 1, 2012 CoC was not
supported by any Affidavit of Renunciation (since Maquiling considered his April 3, 2009 Affidavit of
Renunciation for the 2010 elections effectively recanted). This Comelec ruling disregards the unusual
consequences of the April 3, 2009 Affidavit and the unique circumstances under which the October 1, 2012
CoC was filed.

d. Since the Comelec did not accept the Affidavit of Renunciation that Arnado filed on May 9, 2013 (for the
2013 Elections) in the light of the 2010 Maquiling ruling, he was placed in an impossible situation of being
disqualified in 2013 for a ruling applicable to the 2010 elections, without being given the opportunity to
submit his compliance for the May 2013 elections.

e. Notably, his May 9, 2013 Affidavit of Renunciation, submitted to comply with his May 2013 candidacy,
was rejected because it should have been filed on October 1, 2012 (i.e., when he filed his CoC for the May
2013 elections). If the Maquiling ruling, made on April 16, 2013, was made to retroactively apply to October
1, 2012, so should the opportunity to comply be similarly made retroactive. To the extent he was denied
this opportunity is grave abuse of discretion.

(4) Af any rate, all doubts should be resolved in favour of Arnado's qualification:

a. Arnado' s unequivocal acts and show of allegiance to the Republic and renunciation of other
citizenships, taken together, should have resolved all doubts in favor of his qualification;

b. the mandate of the people of Kauswagan that twice elected Amado as their Mayor should be respected
and upheld.

I. Roots of the Present Petition

A. Factual Background

For a· fuller understanding of the present disqualification case, I reiterate below the important antecedent
facts.

Arnado is a natural-born Filipino citizen who lost his Filipino citizenship after becoming a naturalized citizen
of the United States of America (US.) in 1985.

In 2003, Congress enacted Republic Act (RA) No. 9225 (Citizenship Retention and Re-Acquisition Act of
2003).4

Arnado opted to re-acquire his Philippine citizenship pursuant to RA No. 9225 and soon filed the required
application before the Philippine Consul General in San Francisco, U.S.A. On July 10, 2008, Arnado took
his Oath of Allegiance to the Republic of the Philippines; the Approval of his Citizenship retention and re-
acquisition was issued on the same date.

On April 3, 2009, Arnado executed an Affidavit of Renunciation of his foreign citizenship (interchangeably
referred to, from here on, as April 3, 2009 Affidavit of Renunciation or 2009 express renunciation).

On April 14, 2009, Arnado left the country for the US using his US passport - US passport (No. 057782700)
- which identified his nationality as "USA-American." He returned to the country on June 25, 2009, using
the same US passport. He again left for the US on July 29, 2009, and returned to the country on November
24, 2009, still using his US passport.

Unknown to Amado, however, the Philippine Consulate General in San Francisco, USA, had approved and
issued in his favor a Philippine Passport (No. XX 3979162) on June 18, 2009. 5 He only received this
Philippine passport three months later.6

From then on, he used his Philippine passport in his travels on the following dates: December 11, 2009
(departure); January 12, 2010 (arrival); January 31, 2010 (departure); March 31, 2010 (arrival); April 11,
2010 (departure); April 16, 2010 (arrival); May 20, 2010 (departure); and June 4, 2010 (arrival). 7

B. The Maquiling Case and its Incidents

On November 30, 2009, Amado filed his CoC for the mayoralty post of Kauswagan, Lanao del Norte, for
the May 2010 Elections. On the same day, he executed another Affidavit of Renunciation with Oath of
Allegiance.8

Notably, this Affidavit of Renunciation came after his travel using an American passport.

Linog C. Balua, another mayoralty candidate, filed with the Comelec a petition to disqualify Amado and/or
to cancel his CoC (2010 Disqualification case) on the ground that Arnado remained a US citizen: he
continued to use his US passport for entry to and exit from the Philippines after executing the April 3, 2009
Affidavit of Renunciation. Balua's petition was docketed as SPA No. 10-109 (DC).

Arnado was proclaimed the winning candidate in the May 2010 Elections.

In a resolution dated February 2, 2011, the Comelec En Banc ruled [in SPA No. 10-109 (DC)) that Arnado's
use of his US passport, subsequent to his 2009 Affidavit of Renunciation, did not have the effect of reverting
him to his status as a dual citizen. The Comelec En Banc found believable and plausible Arnado's
explanation that he continued to use his US passport because he only knew of and received his Philippine
passport three months after it was issued on June 18, 2009. As soon as he received his Philippine passport,
he used it in his subsequent travels abroad.

The 2010 disqualification case eventually reached this Court via the petition for certiorari filed by Maquiling;
the case was. docketed as GR No. 195649 entitled Maquiling v. Comelec.

a. The Court's Maquiling Decision.

In its April 16, 2013 Decision, the Court annulled and set aside the Comelec En Banc 's February 2, 2011
Resolution; disqualified Amado from running for the position of Mayor; and declared Maquiling the duly
elected mayor of Kauswagan, Lanao del Norte, in the May 2010 Elections. The Court ruled that by his
subsequent use of his US passport, Arnado effectively disavowed or recanted his April 3, 2009 Affidavit of
Renunciation.

In ruling on the case, the Court significantly acknowledged that:

i. The "act of using a foreign passport does not divest Arnado of his Filipino citizenship, which he re-acquired
by repatriation. By representing himself as an American citizen, however, Amado voluntarily and effectively
reverted to his earlier status as a dual citizen. Such reversion was not retroactive; it took place the instant
Arnado represented himself as an American citizen by using his US passport. "

ii. "In effect, Arnado was solely and exclusively a Filipino citizen only for a period of eleven days, or from
April 3, 2009, until 14 April 2009, on which date he first used his American passport after renouncing his
American citizenship."10

C. The Present Disqualification Case

On October l, 2012, and while the Maquiling case was still pending before this Court (so that the existing
standing rule was the Comelec ruling that he was qualified to be a candidate), Arnado filed his CoC 11 for
the same mayoralty post for the May 2013 Elections. Thus, Arnado saw no need to undertake another
Renunciation.

Respondent Florante Capitan also filed his CoC12 for the same position.

On April 16, 2013, the Court issued its Decision in Maquiling v. Comelec, disqualifying Arnado for the May
2010 Elections.

Apparently in response to the Maquiling ruling, Arnado executed on May 9, 2013, an Oath of Allegiance
and Oath of Renunciation affirming the terms of his April 3, 2009 Affidavit of Renunciation(herein referred
to as 2013 Affidavit).13 Arnado undertook the required acts as soon as he was aware that they had to be
done to perfect his May 2013 candidacy.

On May 10, 2013, Capitan filed a petition to disqualify14 Arnado from running for the Kauswagan mayoralty
post and/or to cancel his CoC (2013 Disqualification case) based on the Court's Maquiling ruling. The case
was docketed as SPA No. 13-309 (DC) and was raffled to the Comelec

Second Division (Second Division).15

On May 14, 2013, during the pendency of the 2013 Disqualification case before. the Second Division,
Arnado was proclaimed the duly elected Mayor of Lanao del Norte in the May 2013 Elections. 16

Capitan responded to the proclamation by filing a petition to nullify Arnado's proclamation, arguing that
pursuant to the Maquiling ruling (which declared Amado disqualified from running for any local elective
office), Arnado's proclamation was void and carried no legal effect.

In a resolution dated July 2, 2013, the Court denied Arnado's motion for reconsideration of the April 16,
2013 Maquiling Decision.

II. The Proceedings before the Comelec

A. Comelec Second Division Ruling

In its resolution dated September 6, 2013, in SP A No. 13-309(DC), the Comelec Second Division
disqualified Amado from running in the May 2013 Elections.

The Second Division declared that at the time he filed his CoC on October 1, 2012, Arnado still failed to
comply with RA No. 9225's requirement of making a personal and sworn renunciation of any and all foreign
citizenship, as his April 3, 2009 Affidavit of Renunciation had been deemed withdrawn or recalled pursuant
to Maquiling. His 2013 Affidavit did not rectify this failure as this subsequent affidavit should have been
executed on or before the filing of his CoC on October 1, 2012

B. The Comelec En Banc Ruling

In its December 9, 2013 resolution, the Comelec En Banc fully affirmed the Second Division's ruling;
annulled Arnado's proclamation; and declared Capitan the duly elected mayor of Kauswagan..

III. The Issues

The issues raised for the Court's consideration are:

A. Whether the Comelec En Banc and the Second Division violated procedural due process and committed
grave abuse of discretion in failing to dismiss the petitions filed by Capitan for forum shopping and/or late
filing;
B. Whether the Comelec En Banc violated due process and committed grave abuse of discretion by
allowing . Commissioner Elias Yusoph to review the decision he wrote for the Second Division;

C. Whether the Comelec committed grave abuse of discretion in disenfranchising 84o/o of the voters
ofKauswagan in the May 2013 elections; and

D. Whether the Comelec committed grave abuse of discretion in disqualifying Arnado who had fully
complied with the requirements of RA No. 9225 before the filing of his CoC on October 1, 2012.

IV. Refutation of the Ponencia

A. Re-acquisition of Philippine citizenship

under RA No. 9225; purposes and legal
effect of the oath of allegiance and oath
of renunciation

RA No. 9225 was enacted to allow natural-born Filipino citizens who lost their Philippine citizenship through
naturalization in a foreign country, to expeditiously re-acquire Philippine citizenship. 17 It is a unique mode
of re-acquiring Philippine citizenship and is a far departure from the citizenship re-acquisition procedure
under Commonwealth Act (CA) No. 63,18 the law in place before RA No. 9225 was enacted.

Under CA No. 63, Philippine citizenship may be re-acquired by: (1) naturalization; (2) repatriation of
deserters of the Army, Navy, or Air Corps, or of a woman who has lost her citizenship by reason of marriage
to an alien after the termination of her marital status; and (3) direct act of the National Assembly. 19

Notably, re-acquisition of Philippine Citizenship under the first mode (i.e., by naturalization) involves the
more stringent procedure laid down in CA No. 473.20 The reacquisition of Philippine citizenship under the
second mode (i.e., by repatriation), on the other hand, provides for an easier procedure as it requires only
the taking of the oath of allegiance to the Republic of the Philippines and registration in the proper civil
registry; it applies, however, only to the specific group of persons enumerated therein.

Under the procedure currently in place under RA No. 9225, the re-acquisition of Philippine citizenship
requires only the taking of an oath of allegiance to the Republic of the Philippines in a manner similar to the
second mode under CA No. 63. But, RA No. 9225 provides for a deeper effect by declaring it a State policy
that under its terms "all Philippine citizens of another country shall be deemed not to have lost their
Philippine citizenship"21 under the conditions provided therein.

The full implication of the effects of RA No. 9225 can fully be appreciated by considering Section 3 of the
law, which reads:

Section 3. Retention of Philippine Citizenship - Any provision of law to the contrary notwithstanding, natural-
born citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have
re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic:

"'I , solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the
Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the
Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and
will maintain true faith and allegiance thereto; and that I imposed this obligation upon myself voluntarily
without mental reservation or purpose of evasion." [emphases supplied]

By its express terms, this oath is one of allegiance that recognizes the "supreme authority" of the Philippines
and the obligation to "maintain true faith and allegiance thereto."

These terms, while seemingly allowing dual citizenship for natural-born Filipino citizens who have lost their
Philippine citizenship by reason of their naturalization as citizens in a foreign country, 22 carry the implicit
effect of renouncing their foreign citizenship and allegiance because of the renewed allegiance that is
accorded to the supreme authority of the Republic.23

In effect, the problem of dual allegiance created by dual citizenship is transferred from the Philippines to
the foreign country. Since the latest oath that the person takes is one of allegiance to the Republic, whatever
treatment the foreign country may have on his or her status is a matter outside the concern and competence
of the Philippine government!.24

The congressional exchanges on dual citizenship and the potential problem of dual allegiance (which under
the Constitution is inimical to public interest), attest to this interpretation as these exchanges reconciled the
possession of dual citizenship and the dual allegiance that the Constitution states to "be inimical to public
interest."

Pursuing his point, Rep. Dilangalen noted that under the measure, two situations exist - the retention of
foreign citizenship, and the reacquisition of Philippine citizenship. In this case, he observed that there are
two citizenships and therefore, two allegiances. He pointed out that under the Constitution, dual allegiance
is inimical to public interest. He thereafter asked whether with the creation of dual allegiance by reason of
retention of foreign citizenship and the reacquisition of Philippine citizenship, there will now be a violation
of the Constitution ....

Rep. Locsin underscored that the measure does not seek to address the constitutional injunction on dual
allegiance as inimical to public interest. He said that the proposed law aims to facilitate the reacquisition of
Philippine citizenship by speedy means. However, he said that in one sense, it addresses the problem of
dual citizenship by requiring the taking of an oath. He explained that the problem of dual citizenship is
transferred from the Philippines to the foreign country because the latest oath that will be taken by the
former Filipino is one of allegiance to the Philippines and not to the United States, as the case may be. He
added that this is a matter which the Philippine government will have no concern and competence over.

Rep. Dilangalen asked why this will no longer be the country's concern, when dual allegiance is involved.

Rep. Locsin clarified that this was precisely his objection to the original version of the bill, which did not
require an oath of allegiance. Since the measure now requires this oath, the problem of dual allegiance is
transferred from the Philippines to the foreign country concerned, he explained.

Rep. Dilangalen asked whether in the particular case, the person did not denounce his foreign citizenship
and therefore still owes allegiance to the foreign government, and at the same time, owes his allegiance to
the Philippine government, such that there is now a case of dual citizenship and dual allegiance.

Rep. Locsin clarified that by swearing to the supreme authority of the Republic, the person implicitly
renounces his foreign citizenship. However, he said that this is not a matter that he wishes to address in
Congress because he is not a member of a foreign parliament but a Member of the House.

Rep. Locsin replied that it is imperative that those who have dual allegiance contrary to national interest
should be dealt with by law. However, he said that the dual allegiance problem is not addressed in the bill.
He then cited the Declaration of Policy in the bill which states that "It is hereby declared the policy of the
State that all citizens who become citizens of another country shall be deemed not to have lost their
Philippine citizenship under the conditions of this Act." He stressed that what the bill does is recognize
Philippine citizenship but says nothing about the other citizenship.

Rep. Locsin further pointed out that the problem of dual allegiance is created wherein a natural-born citizen
of the Philippines takes an oath of allegiance to another country and in that oath says that he abjures and
absolutely renounces all allegiance to his country of origin and swears allegiance to that foreign country.
The original Bill had left it at this stage, he explained. In the present measure, he clarified, a person is
required to take an oath and the last he utters is one of allegiance to the country. He then said that the
problem of dual allegiance is no longer the problem of the Philippines but of the other foreign country.
[emphases supplied]

Jurisprudence confirms this interpretation of RA No. 9225 in AASJS v. Hon. Datumanong25 when the Court
pointedly declared:

By swearing to the supreme authority of the Republic, the person implicitly renounces his foreign
citizenship. Plainly, from Section 3, Rep. Act No. 9225 stayed clear out of the problem of dual allegiance
and shifted the burden of confronting the issue of whether OF not there is dual allegiance to the concerned
foreign country. What happens to the other citizenship was not made a concern of Rep. Act No. 9225.26
[emphasis supplied]

The oath of allegiance taken under RA No. 9225 entitles a person to enjoy full civil and political rights that
include the right to participate, directly or indirectly, in the establishment or administration of the
government. 27 He or she may now vote.

To be voted upon to an elective office, however, a natural-born Filipino citizen who has implicitly renounced
foreign allegiance when he or she swears allegiance to the Republic under RA No. 9225 must still make
his or her previous implicit renunciation "express." In the words of the law, he must "make a personal and
sworn renunciation of any and all foreign citizenship." [Section 5(2) of RA No. 9225]

Section 5. Civil and Political Rights and Liabilities - Those who retain or re-acquire Philippine citizenship
under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following conditions:

(2) Those seeking elective public in the Philippines shall meet the qualification for holding such public office
as required by the Constitution and existing laws, and at the time of the filing of the certificate of candidacy,
make a personal and sworn renunciation of any and all foreign citizenship before any public officer
authorized to administer an oath; .... [emphases and underscoring supplied]

The requirement of an express renunciation, however, does not negate the effect of, or make any less real,
the prior implicit renunciation of citizenship and allegiance made upon taking the oath of allegiance. Thus,
persons availing of RA No. 9225 do not renounce their foreign citizenship for the first time by executing the
Affidavit of renunciation that Section 5(2) of the law requires; they have implicitly made this renunciation
when they swore allegiance to the supreme authority of the Republic.

What the oath of renunciation simply does is to make express what natural-born. Filipino citizens have
already implicitly renounced. The requirement of express renunciation highlights the implication that it is
not the exclusive means by which natural-born Filipino citizens may renounce their foreign citizenship. In
reality, the oath of renunciation is a requirement simply for the purpose of running for elective public office,
apparently to ensure that foreign citizenship and mixed loyalties are kept out of the elective public service.

To paraphrase Japzon v. Comelec, 28 the oath of renunciation makes these natural-born potential
candidates for public office "pure" Philippine citizens 29 from the perspective of the election laws.

In sum, the oath of allegiance not only allows these natural-born Filipinos to re-acquire Philippine
citizenship; thereby, they also implicitly renounce their citizenship and allegiance to any and all foreign
country as they assert allegiance to the "supreme authority of the Philippines and xx x maintain true faith
and allegiance thereto". The oath of renunciation, on the other hand, complements their oath of allegiance
through the express manifestation, for purpose of running for public office, that the candidate is a "pure"
Filipino.

B. Arnado's attainment, loss of "pure"

Filipino citizen status, and subsequent
Developments
Based on the above discussions, I find - as the ponencia and the majority in Maquiling did - that Arnado
became a "pure" Philippine citizen when he took his oath of allegiance to the Philippines on July 10, 2008,
and his oath of renunciation on April 3, 2009.30 With his oath of renunciation, he became solely a Filipino
citizen with total allegiance to the Republic of the Philippines.

He could have, at that point, validly run for public office, except that subsequent to his renunciation, he
travelled using his U.S. passport - a development that the Maquiling ruling unfortunately characterized as
a recantation of his previous renunciation of American citizenship.

Had the developments that transpired in Amado's political life simply stopped with his candidacy in the May
2010 Elections, then the present case and its complications would have been avoided. But as subsequent
developments showed, a confluence of complicating factors arose.

First, Arnado ran again for the same office in the May 2013 Elections, and events overlapped. His
disqualification case was not resolved with dispatch so that the period for the filing of the CoC for the May
2013 Elections (in October 2012) was set while the present case was still pending with this Court.

Second, at that time, the standing ruling was the Comelec en bane decision that Arnado was not disqualified
and had perfected the required submissions for his candidacy. No restraining order or any other ruling from
this Court intervened to prevent this Comelec ruling from being the governing rule in the interim.

As a result, Amado saw no need to undertake remedial measures addressing the matters complained about
in the 2010 Maquiling disqualification case. But at that point, he had already filed two oaths of renunciation
- on April 3, 2009 and on November 30, 2009 - when he filed his CoC for the May 2010 Elections.

Third, he did not submit any oath of renunciation together with his October 1, 2012 CoC since, to his
knowledge, he had complied with the requirements of RA No. 9225 and the Local Government Code, and
had attained "pure" Filipino citizen status. (That he did attain this status based on the 2008 oath of
allegiance and his 2009 affidavit of renunciation is in fact confirmed by Maquiling, although his subsequent
recantation intervened.)

Arnado's political world was overturned when the Court resolved the May 2010 disqualification case on
April 16, 2013, or a few days before the May 2013 elections. But Arnado did not fully dwell on the past.
While filing a motion for reconsideration of the Maquiling ruling, he also acted on his October 1, 2012 CoC
by executing and submitting, on May 9, 2013, an Oath of Allegiance and Oath of Renunciation affirming his
April 3, 2009 Affidavit of Renunciation.

Thus, from the perspective of the laws governing natural-born Filipinos who have re-acquired Philippine
citizenship and who wish to run for public office, Amado did not only comply with the twin requirements of
RA No. 9225 as of April 3, 2009; he even exceeded the requirements of the law by asserting his oath of
allegiance to the Republic four times, while also impliedly renouncing any and all foreign citizenships for
the same number of "times, and twice expressly renouncing any and all other citizenships (with one express
renunciation declared recanted by Maquiling).

All these are material considerations that should be taken into account in resolving the present case and
are more fully discussed under separate headings below.

C. The Comelec gravely abused its

discretion in ruling that the May 9,
2013 Confirmation of Oath of
Affirmation was out of time.

After the promulgation of the Maquiling Decision disqualifying Amado for the May 2010 elections and relying
solely on its terms, the Comelec disqualified Amado for the May 2013 elections because his October 1,
2012 CoC was not supported by any Affidavit of Renunciation (since Maquiling considered his April 3, 2009
Affidavit of Renunciation for the May 2010 elections effectively recanted).
The Comelec ruling and its underlying reasons are, on their face, patently unreasonable since they did not
consider at all the surrounding circumstances of the filing of the October 1, 2012 CoC and the circumstances
that led to the absence of any oath of renunciation after the Maquiling ruling. The Comelec approach is in
fact simplistic to the point of grave abuse of discretion. Apparently, it considered that with the oath of
renunciation·recanted and with no oath filed with the October 1, 2012 CoC, then the CoC should be
considered fatally deficient. The ponencia 's reasoning also runs this way.

Subject to fuller discussions below, I submit that the Comelec missed out on at least three (3) basic
considerations.

First, at the time the October 1, 2012 CoC was filed, the prevailing ruling, although then contested before
the Court, was the Comelec en bane ruling that did not consider Arnado disqualified. To reiterate, no
intervening restraining order was issued by this Court addressing this Comelec ruling. Hence, there was no
immediate need, at the time of the CoC's filing, for a replacement supporting oath of renunciation.

Second, since the Comelec did not accept Amado's May 9, 2013 Affidavit of Renunciation (for the May
2013 Elections) in the light of the Maquiling 11Jling (affecting the May 2010 elections), he was placed in an
impossible situation of being disqualified in the May 2013 Elections for a ruling applicable only to the May
2010 Elections, without being given the opportunity to submit his compliance for the May 2013 Elections.

Third, along the same line of thought, Arnado's May 9, 2013 Affidavit of Renunciation, submitted to comply
with his May 2013 candidacy, was rejected because it should have been filed on October 1, 2012 (i.e.,
when he filed his CoC for the May 2013 elections).

If the Maquiling ruling of April 16, 2013, which addressed the separate 2010 disqualification case, was
made to retroactively apply to October 1, 2012, in the separate 2013 disqualification case, then a retroactive
opportunity should also be given in the 2013 disqualification case to comply with what retroactively applied
in Maquiling.

To the extent that Arnado was denied the chance to submit a replacement ·oath of renunciation in 2013,
there was an unfair and abusive denial of opportunity equivalent to grave abuse of discretion.

D. The Maquiling ruling is limited to

Arnado 's qualification to run for public
office and only for the purpose of the
May 2010 elections

I submit that the ponencia 's ruling, insofar as it adopts the Maquiling ruling, is an overreach that runs
counter to the policy behind RA No. 9225.

I submit that the extent of the legal consequences of the Maquiling ruling affect solely Arnado 's qualification
to run for public office and only for the purpose of the May 2010 elections. These consequences should not
be extended to situations outside of and not contemplated by Maquiling.

The following reasons support my view:

First, the Maquiling ruling only considered the material facts surrounding the May 2010 Elections. The
critical facts on which the Maquiling case turned dwelt with the travels of Amado using his U.S. passport.
These facts are not contested in the present case. Nor am I contesting that for eleven days in April 2009,
Amado was a "pure" Filipino, until a recantation of his renunciation oath took place. These are settled and
accepted facts.

The Maquiling ruling left out, because these are facts that it did not consider material for its resolution (such
as the overlaps in the filing of the October 1, 2012 CoC and the resolution of Maquiling; the effect of
Maquiling on the 2013 disqualification case; the oath of allegiance and renunciation that accompanied the
November 30, 2009 CoC for the May 2010 elections) or because they were outside the scope of the relevant
facts of Maquiling (such as the prevailing Comelec en bane ruling on October 1, 2012 when Amado filed
his CoC; the facts surrounding the filing of the CoC on October 1, 2012; and the May 9, 2013 filing of the
Oath of Allegiance and Oath of Renunciation affirming his April 3; 2009 Affidavit of Renunciation).

From these perspectives, how can the 2010 Maquiling case be a seamless continuation of the 2013
disqualification case now before this Court?

Second, the implied renunciation of foreign citizenship that Amado made on several occasions is different
from and has distinct legal implications separate from the express renunciation he made on April 3, 2009.

The implied renunciation of foreign citizenship proceeds from the oath of allegiance that natural-born
Filipino citizens take to re-acquire Philippine citizenship. This is patent from the terms of the oath of
allegiance and is a consequence of the resulting re-acquisition of Philippine citizenship.

The express renunciation, in contrast, is an after-the-fact requirement that arises only if these natural-born
Filipino citizens choose to run for public office. The requirement of an express renunciation of foreign
citizenship arises only after they have re-acquired Philippine citizenship for the exclusive purpose of
qualifying them for elective public office.

Note in this regard that Maquiling declared as recanted only the express renunciation that Arnado executed
on April 3, 2009, not the implied renunciation that Amado made on several occasions when he swore
allegiance to the supreme authority of the Republic.

This Maquiling declaration and the distinction that it signifies are crucial: first, the implied renunciation of
foreign allegiance that Amado made on several occasions still stands as valid, as Maquiling affected only
his April 3, 2009 express renunciation; second, the implied renunciation must be valid because it did not
affect Amado's reacquisition of Filipino citizenship; and third, Arnado's express renunciation was declared
recanted solely for the purpose of the May 2010 Elections, not for any and all other purposes.

In short, Maquiling did not declare Arnado 's renunciation of his US citizenship invalid for all purposes; it
certainly could not have done so as that case involved an election disqualification case that challenged
Amado's candidacy for the mayoralty post by reason of an alleged defect in his qualification, i.e., Amado's
isolated acts that, to the majority, effectively recanted his express renunciation.

In ruling as it did, Maquiling did not and could not have gone beyond the confines of the underlying election
disqualification case and could not have ruled on Arnado 's Philippine citizenship per se without exceeding
the confines of the Court's jurisdiction.

Citizenship and its loss, acquisition, and re-acquisition are much broader concepts that cannot definitively
be affected by a Court ruling in an election disqualification case, even if the disqualification case touches
on the citizenship qualification of the candidate. Thus, I submit that Maquiling invalidated Arnado 's
renunciation oath solely for the purpose of his qualification/or the May 2010 elections.

Third, Amado became a "pure" Philippine citizen as of April 3, 2009, a legal consequence that Maquiling
recognized and conceded as it declared that "he in fact did" comply with the "twin requirements under RA
No. 9225" for the purpose of election qualification.

What made the Court rule against Amado's qualification for the May 2010 Elections was the finding of
positive, albeit isolated, acts that effectively "disqualified him from running for an elective public office
pursuant to Section 40(d) of the Local Government Code of 1991."

Otherwise stated, Amado, in the Maquiling sense, was indisputably already a "pure" Philippine citizen as of
April 3, 2009. He reverted to a dual citizen status (and only from the perspective of the concerned foreign
country) only on the date subsequent to April 3, 2009, and only by virtue of the ruling that considered his
use of his US passport on isolated occasions as a "voluntar[y] and effective[] [act of] revert[ing] to [the]
earlier status [of] a dual citizen."
To quote and highlight the majority's pronouncement on this point: "[s]uch reversion was not retroactive as
it took place the instant Arnado represented himself as an American citizen by using his US passport. ,, 31

Thus, even if only for qualification purposes, the April 3, 2009 Affidavit of Renunciation was a valid and
Court-recognized express declaration of Amado's renunciation of his US citizenship that the Court cannot
lightly disregard in the present disqualification case.

Fourth, even Maquiling did not perpetually and absolutely disqualify Arnado from running for any elective
public office, or from running in any elections as they declared that "[h]e is disqualified xx from becoming a
candidate in the May 2010 elections. "32

In other words, Maquiling declared Amado as disqualified from running only in the May 2010 Elections; they
did not declare him as disqualified for any and all other elections, including the May 2013 Elections.

E. Arnado's May 9, 2013 Affidavit of

Renunciation, affirming his April 3,
2009 Affidavit, cured any alleged defect
in his qualification to run for public
office during the May 2013 Elections

I take exception to the ponencia 's ruling that ignores Amado's May 9, 2013 Affidavit of Renunciation simply
because it was executed after Amado filed his CoC on October 1, 2012. I submit that Arnado's May 9, 2013
Affidavit of Renunciation bears crucial significance to Amado's qualification to run for the May 2013
Elections which the Court cannot and should not lightly ignore.

Maquiling unequivocably held that by using an American passport, he effectively recanted his express
renunciation of his US citizenship.

Jurisprudence defines the act of recantation to mean to "withdraw or repudiate formally and publicly;" "to
renounce or withdraw prior statement." To "retract" means to "take back;" "to retract an offer is to withdraw
it before acceptance. "33

That Arnado took back his statement disavowing allegiance to the US government, however, does not
render invalid his status as a natural-born Filipino citizen; neither does it negate the fact that he had
impliedly renounced his US citizenship, and had subsequently made an express renunciation of his US
citizenship.

Granting that Amado's use of his US passport amounted to a withdrawal of the express renunciation he
made of his allegiance to the US, this withdrawal does not erase the fact that he did make an express
renunciation of his US citizenship.

To my mind, this express renunciation, even if recanted, may still be re-affirmed, ·in the same way a
statement already made and subsequently denied, can be re-confirmed. Thus, Arnado's 2013 Affidavit of
Renunciation can validly re-affirm the 2009 express renunciation that the Court held to have been recanted
in Maquiling.

Note that in the May 9, 2013 Affidavit of Renunciation, Amado categorically stated that he renounces his
US citizenship, as well as any and all foreign citizenship; swears allegiance to the Republic; and confirms
the renunciation (of his US citizenship). he had previously made in the April 3, 2009 Affidavit of
Renunciation.

Note, likewise, that as explained above, the April 3, 2009 Affidavit of Renunciation is a valid and Court-
confirmed oath that Amado had validly confirmed in his May 9, 2013 Affidavit. To confirm means "to make
firm: strengthen in a resolution, conviction, loyalty, position; to give new assurance of the truth or validity;
to state or imply the truth,"34 and implies a prior existing act.
Finally, note that the Maquiling ruling was issued after Amado took his oath of allegiance to the Republic
four times - on July 10, 2008, April 3, 2009 (when he executed the affidavit of renunciation); November 30,
2009 (when he filed his CoC for the May 2010 Elections); and October 1, 2012 (when he filed his CoC for
the May 2013 Elections). It was also issued after Arnado renounced his US citizenship expressly on April
3, 2009, and impliedly on four occasions - on July 10, 2008; April 3, 2009; November 30, 2009; and October
1, 2012 - when he swore allegiance to the supreme authority of the Republic.

In fact, in his October 1, 2012 CoC, Amado made the following oath:

I will support and defend the Constitution of the Republic of the Philippines and will maintain true faith and
allegiance thereto. I will obey all laws, legal orders and decrees promulgated by the duly constituted
authorities. I impose this obligation upon myself voluntarily, without mental reservation and purpose of
evasion.

Taken together, all these facts undeniably show that Amado's May 9, 2013 Affidavit of Renunciation was
not entirely new, nor completely different and independent from the oath of renunciation that Arnado took
on April 3, 2009. Rather, it affirmed and revalidated the Court-recognized renunciation oath that he had
earlier taken.

Indisputably, Maquiling found that Amado's express renunciation had been validly made. This express
renunciation, having been disavowed, can be re-affirmed by subsequent acts - through his May 9, 2013
Affidavit of Renunciation and through the statement in his October 1, 2012 CoC.

The statement in Amado's October 1, 2012 CoC, for instance, is substantially similar to the oath of
allegiance required in RA No. 9225. This oath not only recognizes Amado's Filipino citizenship, but impliedly
renounces his US citizenship. That he swore sole allegiance to the Philippine Republic in his October 1,
2012 CoC in effect affirmed his express renunciation of US citizenship; and thus dispenses with the need
for another express renunciation.

Rather than an oath that should simply be brushed aside as the Comelec did, the May 9, 2013 Affidavit
served: first, to repair his reverted dual citizen status as declared in Maquiling; and second, to re-assert and
emphasize his clear intent to renounce his US citizenship which he had expressly done once and impliedly
done four times.

In this sense, the May 9, 2013 Affidavit of Renunciation retroacted to April 3, 2009, and cured any alleged
defect in Amado's October 1, 2012 CoC. More importantly, it cured any defect that the intervening Maquiling
ruling introduced on Amado's qualification to run for public office during the May 2013 Elections.

That Amado executed his May 9, 2013 Affidavit of Renunciation while Maquiling was still under the Court's
consideration (it was not confirmed on reconsideration until July 2, 2013) is not without significance. While
the May 9, 2013 Affidavit was filed for purposes of the present disqualification case, it could have, had the
Court been so inclined, considered as a factor in ruling on Maquiling's reconsideration; but apparently it
was not at all considered since Amado's use of his US passport was the focal point of the controversy.

F. The intervening Maquiling ruling did

not and could not have invalidated his
status as a "pure" Philippine citizen
who was qualified to run and had filed a
valid CoC for the May 2013 Elections

As the legal consequences of the Maquiling. ruling on Amado's renunciation of his US citizenship did not
extend beyond his qualification to run for public office during the May 2010 elections; and that the May 9,
2013 Affidavit of Renunciation cured any alleged defect in Amado's qualification to run for the May 2013
Elections, I submit that the Maquiling ruling on April 16, 2013 did not affect and could not have affected
Armado's qualification to run for public office for the purpose of the May 2013 Elections.
Under the circumstances, Amado had effectively become a "pure" natural-born Philippine citizen again on
October 1, 2012, when he executed the retroactive and curative May 9, 2013 Affidavit of Renunciation, and
which status continued well beyond the May 2013 Elections. In this way, Arnado qualified for the position
of Mayor of Kauswagan, Lanao del Norte, and filed a valid CoC.

G. When Arnado filed his CoC on October

1, 2012, the Comelec En Banc, in its
February 2, 2011 Resolution in SPA
No. 10-109(DC), declared him as
qualified to run/or the elective office;
hence, Arnado did not need to execute
another Affidavit of Renunciation
because of this standing Comelec ruling

I likewise strongly object to the ponencia for faulting Amado for not executing another oath of renunciation
at the time of or prior to the filing of his CoC on October 1, . 2012, reasoning out that as "early as 2010 x x
x Amado has gotten wind that the use of his US passport might pose a problem to his candidacy."

It should be remembered that in the February 2, 2011 Resolution in SP A No. 10-109(DC), the Comelec En
Banc declared Arnado as a "pure" Philippine citizen again, qualified to run for elective public office. This
Comelec ruling still stood and had not yet been overturned at the time Arnado filed his CoC on October 1,
2012 for the May 2013 Elections. Arnado, therefore, had every right and reason to rely on this Comelec
ruling and to believe that he was not disqualified to run in the May 2013 Elections.

I concede that, as the events have shown, he should, in retrospect, have exercised greater care and have
taken every. step to secure his qualification to run for public office. His failure, however, should not and
cannot affect his qualification which then stands and is authoritatively affirmed by the Comelec.

Indeed "there is no law prohibiting him from executing an Affidavit of Renunciation every election period"
as the ponencia puts it. But, note that there is equally no law that requires him to constantly and consistently·
assert his renunciation of any and all foreign citizenship. Neither is there any law that expressly or impliedly
imposes on natural-born Filipino citizens the obligation to constantly assert their allegiance to the Republic
and perform positive acts to assert this allegiance.

In fact, as the law stands, natural-born Filipino citizens who have lost their Philippine citizenship by reason
of their naturalization as citizens of a foreign country need only to take an oath of allegiance to the supreme
authority of the Republic to re-acquire Philippine citizenship as they are "deemed not to have lost their
Philippine citizenship." Once they re-acquire their Philippine citizenship after complying with these legal
steps, they no longer need to perform any positive act to assert Philippine citizenship or to elect
citizenship.35

H. Arnado 's persistent assertions of his

allegiance to the Republic and
renunciation of his US citizenship more
than sufficiently proved his determined
resolve to profess allegiance only to the
Republic; these continuing assertions
should have resolved any doubt in favor
of his qualification

RA No. 9225 is a relatively new statutory enactment whose provisions have not been exhaustively
interpreted and ruled upon by this Court, through an appropriate case. In this respect, I submit that in
situations of doubt where the strict application of the equivocal letter of the law would clearly and
undoubtedly disregard the legislative intent, the Court must and should tread lightly as it rules on the
relatively uncharted area of application where RA No. 9225 overlaps with our elections laws.
The unique factual situation of this case presents such situation of doubt which the Court must resolve in
the light of the clear legislative intent, rather than from the strict application of the equivocal letter of the
law. I find that Amado's persistent assertion of his allegiance to the Republic and renunciation of his US
citizenship more than sufficiently prove his determined resolve to profess allegiance only to the Republic
and to none other.

I submit that the following considerations should not be missed.

At the time Amado filed his CoC on October 1, 2012, he had fully satisfied all of the requirements of RA No.
9225 to run for elective public office: he has re-acquired Philippine citizenship after having filed the Oath of
Allegiance and secured the order of approval on July 10, 2008; he has also met all of the qualifications
under the Constitution and the law for the local elective office; and he has already executed an Affidavit of
Renunciation on April 3, 2009.

Likewise, as of October 1, 2012, Amado had sworn allegiance to the Republic four times, i.e., on July 10,
2008; April 3, 2009; November 30, 2009; and October 1, 2012. He had also renounced his US citizenship
expressly on April 3, 2009, and impliedly thrice on July 10, 2008, November 30, 2009, and October 1, 2012.

Additionally, on October 1, 2012, the Comelec en bane, via the February 2, 2011 resolution in SPA No. 10-
109(DC), had ruled in his favour, affirmed the existence and validity of his oath of renunciation, and
confirmed his continuing qualification for the elective post. At that time, the February 2, 2011 Comelec ruling
had not yet been reversed by this Court and stood as the final and most recent ruling as regards his
qualification to run for the local elective post. As it had not yet been reversed, he clearly and rightfully had
every reason to rely on this Comelec ruling when he filed his CoC on October 1, 2012.

In these lights, Amado's allegiance to the supreme authority of the Republic and his renunciation of any
and all foreign allegiance, including those to the US government, cannot be doubted. From the time he had
re-acquired "pure" Philippine citizenship under the terms of RA No. 9225, Arnado has persistently asserted
these oaths even while the law does not require him to do so.

In this situation, any doubt or ambiguity should be resolved in favor of his full Filipino citizenship - with his
qualification to run for the May 2013 Elections - since the thrust of RA No. 9225 is to encourage the return
to Filipino citizenship of natural-born Filipinos who lost their Philippine citizenship through their acquisition
of foreign citizenship. 36 Note in this regard that Amado consciously and voluntarily gave up a very much
sought-after citizenship status in favor of returning to full Filipino citizenship and of participating in Philippine
governance.37

I. Maquiling did not say that Arnado used

his US passport again on January 12,
2010, and on March 23, 2010

A minor matter, asserted by the ponencia, which should be corrected is the claim that Amado "used his US
passport on January 12, 2010, and on March 23, 2010, as found by this Court in Maquiling."

I strongly object to this observation as the ponencia clearly misread Maquiling.

Nowhere in Maquiling did the Court make a finding that Arnado used his US passport again on January 12,
2010, and March 23, 2010 - months after he had received his Philippine passport. Rather, the alleged use
by Arnado of his US passport on these dates was a mere assertion of Balua, before the Comelec First
Division in the Maquiling case; interestingly, Balua was no longer a party when the case reached this Court.
In fact, the Court in Maquiling, quoting a portion of the Comelec En Banc decision, noted that on January
12, 2010, what Arnado used was his Philippine passport, not his US passport.

J. Under the circumstances, the Comelec

committed grave abuse of discretion
In this Rule 64-Rule 65 petition, the Court's review is limited to the jurisdictional issue of whether the
Comelec acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction.

As a concept, grave abuse of discretion generally refers to capricious or whimsical exercise of judgment as
is equivalent to lack of jurisdiction; the abuse of discretion must be patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of
passion and hostility. Mere abuse of discretion is not enough; it must be grave.

The Court's review power is also limited by the condition, under Section 5, Rule 64 of the Rules of Court,
that findings of fact of the Comelec, supported by substantial evidence, shall be final and non-reviewable.
In this respect, the Court does not ordinarily review the Comelec' s appreciation and evaluation of evidence
as any misstep by the Comelec in this regard generally involves an error of judgment, not of jurisdiction.

In exceptional situations, however, where the assailed judgment is based on misapprehension or erroneous
apprehension of facts or on the use of wrong or irrelevant considerations in deciding an issue 38 -situations
that are tainted with grave abuse of discretion - the Court is not only obliged but has the constitutional duty
to intervene. 39 When grave abuse of discretion is present, the resulting errors mutate from error of judgment
to one of jurisdiction.

I find that, based on the reasons discussed above, the Comelec' s action in this case as it disqualified
Amado from running for the May 2013 Elections, was clearly tainted with grave abuse of discretion.

The Comelec committed grave abuse of discretion when: first, it relied completely and indiscriminately on
the Maquiling ruling - the wrong and irrelevant, or at the very least, incomplete - consideration in deciding
the underlying disqualification case; and second, it did not make its own finding of facts and evaluation of
the evidence, independent of Maquiling, and disregarded relevant facts and evidence subsequent to
Maquiling - a clear misapprehension of the facts. Note that the Comelec, both in the September 6, 2013,
and December 9, 2013 resolutions, quoted heavily portions of the Maquiling ruling and drew its discussions
and conclusion largely from Maquiling.

For these reasons, and under the circumstances of this case, I submit that the assailed Comelec actions
must be struck down for grave abuse of discretion amounting to lack or excess of jurisdiction.

K. At any rate, all doubts should be

resolved in favor of Arnado 's
qualification: the mandate of the people
of Kauswagan that twice elected Arnado
as their Mayor should be respected and
upheld

Independently of all these issues - of Amado's qualification to run for the May 2013 Elections and the
intervention of the Maquiling ruling - the

Court cannot and should not now ignore the undeniable fact that the people of Kauswagan, Lanao del
Norte, have themselves responded to the situation of doubt that might have arisen because of the factual
link between the present disqualification case and the intervention of the Maquiling ruling.

The people themselves made their own ruling when they elected Arnado as their mayor in the two
successive elections - the May 2010 and the May 2013 elections - despite the "foreigner" label his rivals,
even the ponencia, sought to continuously pin on him.

Arnado received an overwhelming 8,902 votes as against the meager 1,707 votes of his opponent Capitan
in the May 2013 Elections; in the May 2010 Elections, he received the majority 5,952 of the total 11,309
votes cast. At this point, "even this Court should heed this verdict by resolving all doubts regarding Arnado's
eligibility in his favor.". This is not a novel approach.40 To reiterate what Sinaca v. Mula41 teaches us:

[When] a candidate has received popular mandate, overwhelmingly and clearly expressed, all possible
doubts should be resolved in favor of the candidate's eligibility for to rule otherwise is to defeat the will of
the people. Above and beyond all, the determination of the true will of the electorate should be paramount.
It is their voice, not ours or of anyone else, that must prevail. This, in essence, is the democracy we continue
to hold sacred.

In the words of another leading case - Frivaldo v. Comelec42- the law and the courts, including this Court,
must give serious consideration to the popular will.

"In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert
utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is
merely sound public policy to cause elective offices to be filled by those who are the choice of the majority.
To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that
the ineligibility is so patently antagonistic 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.43

Under the evidentiary and unique factual situation of this case, the alleged eligibility of Amado is not
antagonistic, patently or otherwise, to constitutional and legal principles such that giving effect to the
sovereign will would create prejudice to our democratic institutions.

Notably, the Office of the Sanggunianng Bayan, through Resolution No. 002-201444 dated January 2, 2014,
and the Liga ng Mga Barangay, through Resolution No. 001-201445 dated January 2, 2014, expressed their
continuing and overwhelming support for Amado, notwithstanding the Comelec rulings disqualifying him
from the May 2013 Elections, and implores the Court to heed the Kauswagan people's voice under the
principle vox populi, vox dei.

Under the circumstances of this case, the ponencia 's action that resolves all doubts against Amado's
eligibility undoubtedly defeats the will of the Kauswagan electorate. 46 In ruling as it does, the ponencia
effectively disenfranchises an undoubtedly overwhelming majority of the Kauswagan people as "[t]he rights
of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as
by wholly prohibiting the free exercise of the franchise."
47 The Court should respect and uphold the will of the electorate.

For the above reasons, I vote to grant the petition.

ARTURO D. BRION
Associate Justice

CONCURRING AND DISSENTING OPINION

LEONEN, J.:

Petitioner Rommel C. Amado renounced his foreign citizenship in accordance with Republic Act No. 9225
no less than three times. After he had filed his candidacy for the position of Mayor in 2013, this court
promulgated its Decision in Maquiling v. Commission on Elections, 1 which made it impossible for him to
again renounce or reiterate his renunciation of his foreign citizenship. In the 2013 elections, he won
garnering 84o/o of the votes cast in his municipality. The majority opinion requires him now, yet again, to
renounce his foreign citizenship.
I concur with the ponencia's finding that petitioner's claim of procedural infirmities that occurred during the
proceedings before the Commission on Elections is unsubstantiated.

However, I cannot agree with the conclusion that petitioner remained an American citizen in accordance
with this court's ruling in Maquiling. Petitioner was already a Filipino citizen at the time he filed his Certificate
of Candidacy on October 1, 2012. He was qualified to run in the 2013 Elections. The Petition should be
granted.

Petitioner has performed all the acts required by Republic Act No. 92252 in order to reacquire his Filipino
citizenship.

Under Section 39(a) of the Local Government Code,3 a candidate for Mayor must be a citizen of the
Philippines, a registered voter, a resident in the municipality or city where he or she intends to be elected
for at least one (1) year immediately preceding the day of election, and be able to read and write Filipino or
any local language or dialect.

Section 40(d) of the Local Government Code 4 expressly disqualifies those who possess dual citizenship
from running in any local elective position. These provisions, however, do not disqualify candidates who
might have lost their citizenship but were able to reacquire it before running for public office.

Article IV, Section 3 of the Constitution provides that "Philippine citizenship may be lost or reacquired in the
manner provided by law."

Those who lose their Filipino citizenship through naturalization in another country may reacquire it through
the procedure outlined in Republic Act No. 9225. This also applies to naturalized citizens who wish to
reacquire their Filipino citizenship in order to run for public office.

According to Section 3 of Republic Act No. 9225:

SEC. 3. Retention of Philippine Citizenship. - Any provision of law to the contrary notwithstanding, natural-
born citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have
re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic:

"I , solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines
and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and
I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true
faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental
reservation or purpose of evasion."

Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign
country shall retain their Philippine citizenship upon taking the aforesaid oath.

The effect of reacquisition is the restoration of Philippine citizenship to natural-born Filipino citizens who
have been naturalized as citizens in a foreign country. All that is required to retain their citizenship is to take
the oath of allegiance under the law.

In the previous repatriation law, naturalized citizens seeking to reacquire Philippine citizenship only had to
take an oath of allegiance in order to regain their citizenship, including the right to seek public office. 5 Act
No. 636 states:

SEC. 4. Repatriation shall be effected by merely taking the necessary oath of allegiance to the
Commonwealth of the Philippines and registration in the proper civil registry.

The same requirement is present in the present reacquisition law. Philippine citizenship is deemed to have
been reacquired through the taking of the oath of allegiance embodied in Section 3 of Republic Act No.
9225. However, unlike the previous law, the mere act of taking the oath of allegiance is not sufficient
compliance for those seeking to run for public office. The law includes an additional requisite before they
become qualified to run for public office, thus:

SEC. 5. Civil and Political Rights and Liabilities. - Those who retain or re-acquire Philippine citizenship
under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following conditions:

(2) Those seeking elective public in the Philippines shall meet the qualification for holding such public office
as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy,
make a personal and sworn renunciation of any and all foreign citizenship before any public officer
authorized to administer an oath[.] (Emphasis supplied)

In Japzon v. Commission on Elections: 7

[F]or a natural born Filipino, who reacquired or retained his Philippine citizenship under Republic Act No.
9225, to run for public office, he must: ( 1) meet the qualifications for holding such public office as required
by the Constitution and existing laws; and (2) make a personal and sworn renunciation of any and all foreign
citizenships before any public officer authorized to administer an oath.8

The law requires a personal and sworn renunciation of all foreign citizenships before the candidate files a
certificate of candidacy.

In Jacot v. Dal and Commission on Elections,9 this court disqualified Nestor A. Jacot from running for Vice
Mayor of Catarman, Camiguin, after he failed to make a personal and sworn renunciation of his American
citizenship:

The law categorically requires persons seeking elective public office, who either retained their Philippine
citizenship or those who reacquired it, to make a personal and sworn renunciation of any and all foreign
citizenship before a public officer authorized to administer an oath simultaneous with or before the filing of
the certificate of candidacy.

Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized
as citizens of a foreign country, but who reacquired or retained their Philippine citizenship (1) to take the
oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for those seeking elective public offices
in the Philippines, to additionally execute a personal and sworn renunciation of any and all foreign
citizenship before an authorized public officer prior or simultaneous to the filing of their certificates of
candidacy, to qualify as candidates in Philippine elections.

Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation of any
and all foreign citizenship) requires of the Filipinos availing themselves of the benefits under the said Act
to accomplish an undertaking other than that which they have presumably complied with under Section 3
thereof (oath of allegiance to the Republic of the Philippines). This is made clear in the discussion of the
Bicameral Conference Committee on Disagreeing Provisions of House Bill No. 4720 and Senate Bill No.
2130 held on 18 August 2003 (precursors of Republic Act No. 9225), where the Hon. Chairman Franklin
Drilon and Hon. Representative Arthur Defensor explained to Hon. Representative Exequiel Javier that the
oath of allegiance is different from the renunciation of foreign citizenship:

CHAIRMAN DRILON. Okay. So, No. 2. "Those seeking elective public office in the Philippines shall meet
the qualifications for holding such public office as required by the Constitution and existing laws and, at the
time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all
foreign citizenship before any public officer authorized to administer an oath." I think it's very good, ha? No
problem?

REP. JAVIER.... I think it's already covered by the oath.

CHAIRMAN DRILON. Renouncing foreign citizenship.

REP. JAVIER. Ah ... but he has taken his oath already.

CHAIRMAN DRILON. No ... no, renouncing foreign citizenship.

CHAIRMAN DRILON. Can I go back to No. 2. What's your problem, Boy? Those seeking elective office in
the Philippines.

REP. JAVIER. They are trying to make him renounce his citizenship thinking that ano ...

CHAIRMAN DRILON. His American citizenship.

REP. JAVIER. To discourage him from running?

CHAIRMAN DRILON. No.

REP. A.D. DEFENSOR. No. When he runs he will only have one citizenship. When he runs for office, he
will have only one.

There is little doubt, therefore, that the intent of the legislators was not only for Filipinos reacquiring or
retaining their Philippine citizenship under Republic Act No. 9225 to take their oath of allegiance to the
Republic of the Philippines, but also to explicitly renounce their foreign citizenship if they wish to run for
elective posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only have
one citizenship, namely, Philippine citizenship.

By the same token, the oath of allegiance contained in the Certificate of Candidacy, which is substantially
similar to the one contained in Section 3 of Republic Act No. 9225, does not constitute the personal and
sworn renunciation sought under Section 5(2) of Republic Act No. 9225. It bears to emphasize that the said
oath of allegiance is a general requirement for all those who wish to run as candidates in Philippine
elections; while the renunciation of foreign citizenship is an additional requisite only for those who have
retained or reacquired Philippine citizenship under Republic Act No. 9225 and who seek elective public
posts, considering their special circumstance of having more than one citizenship.10 (Emphasis in the
original)

Section 5 of Republic Act No. 9225 restores full civil and political rights to those who wish to reacquire their
citizenship, including the right to vote and be voted for. A candidate may have the right to vote and be voted
for as long as he or she has already done all positive acts necessary for the reacquisition of his or her
Philippine citizenship before filing his or her certificate of candidacy.

Residency as a requirement for public office must also be interpreted as a separate matter from citizenship.
Residence is said to be synonymous to domicile.11 Domicile requires both physical presence and animus
revertendi or intent to return.12 Citizenship may be presumed from one's domicile,13 but this presumption is
disputable. Further proof other than domicile may be required to prove citizenship.

A person residing in the Philippines is presumed to be a Filipino citizen. Domicile, however, does not ipso
facto prove his or her citizenship. A Filipino may reside in the United States but still remain a Filipino citizen.
An American may also reside in the Philippines and still remain an American citizen. The presumption
created by residency is not conclusive of one's citizenship.

Residency also need not be continuous for as long as the total number of required years have been
complied with before the election. Section 39(a) of the Local Government Code requires residency for "at
least one (1) year immediately preceding the day of the election for local elective office." A candidate for
local elective office may be eligible to run for as long as he or she is proven to have animus revertendi in a
certain domicile for at least one (1) year immediately preceding the elections.
The purpose of the residency requirement is "to give candidates the opportunity to be familiar with the
needs, difficulties, aspirations, potentials for growth[,] and all matters vital to the welfare of their
constituencies; likewise, it enables the electorate to evaluate the office seekers' qualifications and fitness
for the job they aspire for."14 The length of a candidate's residency depends on the time necessary to
acquire familiarity with the constituency as well as sensitivity to the welfare of the constituents. The
requirement seeks "to exclude a stranger or newcomer, unacquainted with the conditions and needs of a
community and not identified with the latter, from an elective office to serve that community."15

Continuity does not always guarantee familiarity. A momentary absence from the country does not negate
the purpose of the residency requirement.16 A candidate who has spent some time abroad may offer a
unique perspective as opposed to a candidate who has never left the country.

The former may be in a better position to observe the changes the country may have undergone through
the years, or may have a stronger intuition as to the level of growth it still needs. What is important is that
the purpose of residency is complied with.

Petitioner took his Oath of Allegiance to the Republic of the Philippines on July 10, 2008. On April 3, 2009,
he executed his Affidavit of Renunciation of his foreign citizenship. Petitioner alleges that he executed his
Affidavit of Renunciation with Oath of Allegiance on November 30, 2009. On May 9, 2013, he again
executed the Affidavit Affirming Rommel C. Arnado 's "Affidavit of Renunciation Dated April 3, 2009. "

Petitioner renounced his American citizenship no less than three times before he filed his Certificate of
Candidacy on October 1, 2012. He had performed all the acts required by Republic Act No. 9225 in order
to reacquire his Filipino citizenship before he ran for public office.

However, the ponencia takes exception to these findings of fact and rules that, in accordance with this
court's findings in Maquiling, petitioner's use of his American passport after executing his Affidavit of
Renunciation negated his Affidavit. I cannot agree with this conclusion.

II

Petitioner's use of his American passport was an isolated act required by the circumstances. At that time,
he had not yet been issued his Philippine passport.

In the dissent in Maquiling led by Associate Justice Arturo D. Brion, it was pointed out that when Amado
traveled back to the United States, "he had no Philippine passport that he could have used to travel to the
United States to attend to the winding up of his business and other affairs in America." 17

The use of a foreign passport should not by itself cause the immediate nullity of one's affidavit of
renunciation. Its circumstances must also be taken into account.

The necessity of the use of his American passport is shown by the timeline of events, thus:

Affidavit of Renunciation: April 3, 2009

Date of Issuance of Philippine Passport: June 18, 2009

Receipt of Philippine Passport: September 2009

Second Affidavit of Renunciation with Oath of Allegiance (alleged by petitioner): November 30, 2009

Date of Travels18

Date of Departure from Date of Arrival in the

Destination Passport
the Philippines Philippines
USA April 14, 2009 June 25, 2009 American
USA July 29, 2009 November 24, 2009 American
USA December 11, 2009 January 12, 2010 Philippine
 USA January 31, 2010 March 31, 2010 Philippine
USA April 11, 2010 April 16, 2010 Philippine
USA May 20, 2010 June 4, 2010 Philippine
Petitioner could use only his American passport when he traveled on April 14, 2009 since the Consulate of
the Philippines had not yet issued him a Philippine passport.

When petitioner received his Philippine passport sometime in September 2009, he could not immediately
use it to exit the United States since he entered the country using an American passport. If he exited using
a Philippine passport, one presumably without an American visa, immigration authorities of both the
Philippines and the United States would have questioned his travel documents. He would have had no
choice but to use his American passport to exit the United States.

However, petitioner did use his Philippine passport in his subsequent travels. Hence, his isolated use of his
American passport when he did not yet have his Philippine passport is not sufficient cause to negate his
Affidavit of Renunciation.

The ponencia cites Maquiling, in that Linog C. Balua, petitioner's rival candidate in the 2010 Elections,
presented a certification dated April 23, 2010 from the Bureau of Immigration indicating that as of January
12, 2010 and March 23, 2010, petitioner's nationality was "USA-American." The Computer
Database/Passenger Manifest states:

DATE OF Arrival : 01/12/2010

NATIONALITY : USA-AMERICAN
PASSPORT : 057782700
DATE OF Arrival : 03/23/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 05778270019
This certification is contradicted by petitioner's Philippine passport which was stamped by the Bureau of
Immigration also on these dates. 20 It was, therefore, erroneous for the ponencia to refer to the certification
as "uncontroverted. "21

The ponencia unduly gives weight to the Bureau of Immigration's certification on the basis that the copy of
his Philippine passport was a mere "certified true copy from the machine copy on file." 22 Maquiling
undoubtedly states that petitioner was issued a Philippine passport and that he used it for his subsequent
travels abroad.23 There is a presumption that this piece of evidence, like the certification by the Bureau of
Immigration, can be relied upon since it forms part of the case records. Under the presumption of regularity,
his passport is presumed to have been stamped by the Bureau of Immigration. Until and unless it is alleged
and proven that the stamps on his Philippine passport are fraudulent, it is presumed that the Bureau of
Immigration certified the use of his Philippine passport and the use of his American passport on the dates
alleged. It is also possible that at the time the certification was issued, the Bureau of Immigration had not
yet updated its database. Therefore, it was erroneous for the ponencia to conclude that petitioner used his
American passport on January 12, 2010 and on March 23, 2010 based merely on the certification dated
April 23, 2010.24

III

Even if the ponencia applied the ruling in Maquiling, Amado should have already been qualified to run in
the 2013 Elections

Maquiling held that petitioner's use of his American passport negated his Affidavit of Renunciation, thus
disqualifying him to run in the 2010 Elections:

We therefore hold that Amado, by using his US passport after renouncing his American citizenship, has
recanted the same Oath of Renunciation he took. Section 40(d) of the Local Government Code applies to
his situation. He is disqualified not only from holding the public office but even from becoming a candidate
in the May 2010 elections. 25

Therefore, it can be reasonably concluded that, per Maquiling, petitioner's use of his Philippine passport
signifies his Philippine citizenship.

According to Republic Act No. 8239,26 a passport is "a document issued by the Philippine government to
its citizens and requesting other governments to allow its citizens to pass safely and freely, and in case of
need to give him/her all lawful aid and protection."27

By definition, a Philippine passport is a document issued by the government to its citizens. Clearly, a
Philippine passport cannot be issued to an American citizen.

If this court concludes, as the ponencia has done, that petitioner remained an American citizen, the facts
should show that he continued to use his American passport before he filed his Certificate of Candidacy for
the 2013 Elections.

As of June 18, 2009, petitioner was issued a Philippine passport. He has continually used his Philippine
passport from December 11, 2009. He also executed an Affidavit of Renunciation with Oath of Allegiance
on November 30, 2009. By the time he filed his Certificate of Candidacy on October 1, 2012, he was already
the bearer of a Philippine passport. In Yu v. Defensor-Santiago,28 a petition for habeas corpus was filed
against then Commissioner for Immigration and Deportation Miriam Defensor-Santiago for the release of
Willie Yu (Yu) from detention. This court, confronted with the issue of Yu's citizenship, found:

Petitioner's own compliance reveals that he was originally issued a Portuguese passport in 1971, valid for
five (5) years and renewed for the same period upon presentment before the proper Portuguese consular
officer. Despite his naturalization as a Philippine citizen on 10 February 1978, on 21 July 1981, petitioner
applied for and was issued Portuguese Passport No. 35/81 serias N. 1517410 by the Consular Section of
the Portuguese Embassy in Tokyo. Said Consular Office certifies that his Portuguese passport expired on
20 July 1986. While still a citizen of the Philippines who had renounced, upon his naturalization, "absolutely
and forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty" and pledged to
"maintain true faith and allegiance to the Republic of the Philippines," he declared his nationality as
Portuguese in commercial documents he signed, specifically, the Companies Registry of Tai Shun Estate
Ltd. filed in Hongkong sometime in April 1980.

To the mind of the Court, the foregoing acts considered together constitute an express renunciation of
petitioner's Philippine citizenship acquired through naturalization. In Board of Immigration Commissioners
vs. Go Galiano, express renunciation was held to mean a renunciation that is made known distinctly and
explicitly and not left to inference or implication. Petitioner, with full knowledge, and legal capacity, after
having renounced Portuguese citizenship upon naturalization as a Philippine citizen resumed or reacquired
his prior status as a Portuguese citizen, applied for a renewal of his Portuguese passport and represented
himself as such in official documents even after he had become a naturalized Philippine citizen. Such
resumption or reacquisition of Portuguese citizenship is grossly inconsistent with his maintenance of
Philippine citizenship.29 (Emphasis supplied)

Yu's renewal of his Portuguese passport was a renunciation of his Philippine citizenship. This court took
into account Yu's application for renewal and his declaration of his Portuguese nationality in commercial
documents.

In contrast, petitioner was forced by his circumstances to use his American passport at a time when he had
not yet been issued a Philippine passport. Upon the issuance of his Philippine passport, however, petitioner
consistently used this passport for his travels. His consistent use of his Philippine passport was a positive
act that showed his continued allegiance to the country.
Petitioner's continued intent to renounce his American citizenship is clear when he executed his Affidavit
Affirming Rommel C. Arnado 's "Affidavit of Renunciation Dated April 3, 2009" on May 9, 2013.

Republic Act No. 9225 requires a personal and sworn renunciation from persons who seek to reacquire
their Philippine citizenship in order to run for local office. Petitioner's Affidavit of Renunciation dated April 3,
2009, his continued use of his Philippine passport, his alleged Affidavit of Renunciation with Oath of
Allegiance dated November 30, 2009, and his Affidavit dated May 9, 2013 are more than enough evidence
to show his personal and sworn renunciation of his American citizenship.

IV

Election laws must be interpreted to give effect to the will of the people.

Petitioner garnered an overwhelming 8,902 votes, 84% of the total votes cast3° in the 2013 mayoralty
elections. If he is disqualified, Florante Capitan, his opponent who garnered 1, 707 votes, a mere 16% of
the total votes cast,31 will become the duly elected mayor of Kauswagan, Lanao del Norte. This court will
have substituted its discretion over the sovereign will of the people.

The ponencia erroneously cites Lopez v. Commission on Elections 32 as basis for stating that petitioner's
landslide victory could not override eligibility requirements.

In Lopez, a petition for disqualification was filed against Eusebio Eugenio K. Lopez (Lopez) to disqualify
him from running for Barangay Chair in the 2007 Barangay Elections. Lopez argued that he was a dual
citizen by virtue of Republic Act No. 9225 and, hence, was qualified to run.

This court disagreed and disqualified Lopez from running in public office since he failed to make a personal
and sworn renunciation of his American citizenship. It also ruled that his subsequent victory in the elections
could not cure the defect of his disqualification:

While it is true that petitioner won the elections, took his oath and began to discharge the functions of
Barangay Chairman, his victory cannot cure the defect of his candidacy. Garnering the most number of
votes does not validate the election of a disqualified candidate because the application of the constitutional
and statutory provisions on disqualification is not a matter of popularity. 33

Lopez, however, does not apply since the candidate in that case failed to execute a personal and sworn
renunciation of his American citizenship.1avvphi1 In this case, petitioner made a personal and sworn
renunciation of his American citizenship no less than three times.

In Japzon v. Commission on Elections, 34 a petition for disqualification was brought against Jaime S. Ty
(Ty), who won as Mayor of MacArthur, Eastern Samar in the 2007 Elections. Ty was a natural born Filipino
citizen who migrated to the United States and stayed there for 25 years. He took an Oath of Allegiance in
2005 and renounced his American citizenship before a notary public on March 19, 2007. The question
before this court, however, was whether his reacquisition of citizenship has the effect of regaining his
domicile, in compliance with the residency requirements for elections.

In resolving the issue, this court found that Ty substantially complied with the requirements of Section 5(2)
of Republic Act No. 9225 when he personally executed a Renunciation of Foreign Citizenship before a
notary public before filing his Certificate of Candidacy.1âwphi1 It also ruled that Ty was able to comply with
the residency requirements:

[W]hen the evidence of the alleged lack of residence qualification of a candidate for an elective position is
weak or inconclusive and it clearly appears that the purpose of the law would not be thwarted by upholding
the victor's right to the office, the will of the electorate should be respected. For the purpose of election laws
is to give effect to, rather than frustrate, the will of the voters. To successfully challenge Ty's disqualification,
Japzon must clearly demonstrate that Ty's ineligibility is so patently antagonistic to constitutional and legal
principles that overriding such ineligibility and thereby giving effect to the apparent will of the people would
ultimately create greater prejudice to the very democratic institutions and juristic traditions that our
Constitution and laws so zealously protect and promote. In this case, Japzon failed to substantiate his claim
that Ty is ineligible to be Mayor of the Municipality of General Macarthur, Eastern Samar, Philippines. 35
(Emphasis supplied)

In Bengson III v. House of Representatives Electoral Tribunal, 36 a similar citizenship issue was raised
against Teodoro C. Cruz (Cruz) on the ground that he lost his citizenship when he enlisted in the United
States Marine Corps in 1985. This court disagreed, stating that Cruz reacquired his Philippine citizenship
through repatriation under Republic Act No. 2630.

Former Associate Justice Artemio V. Panganiban's Concurring Opinion is particularly instructive in stating
that this court has a duty to uphold the clear mandate of the people, thus:

4. In Case of Doubt, Popular Will Prevails

[T]he Court has a solemn duty to uphold the clear and unmistakable mandate of the people. It cannot
supplant the sovereign will of the Second District of Pangasinan with fractured legalism. The people of the
District have clearly spoken. They overwhelmingly and unequivocally voted for private respondent to
represent them in the House of Representatives. The votes that Cruz garnered (80, 119) in the last elections
were much more than those of all his opponents combined (66, 182). In such instances, all possible doubts
should be resolved in favor of the winning candidate's eligibility; to rule otherwise would be to defeat the
will of the people.

Well-entrenched in our jurisprudence is the doctrine that in case of doubt, political laws must be so
construed as to give life and spirit to the popular mandate freely expressed through the ballot. Public interest
and the sovereign will should, at all times, be the paramount considerations in election controversies. For
it would be better to err in favor of the people's choice than to be right in complex but little understood
legalisms. "Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign will
in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the
popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would
give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled
by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications,
the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic 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."37 (Emphasis supplied)

Petitioner has proven over and over again that he has renounced his American citizenship. He continues
to use his Philippine passport for his foreign travels. His landslide victory in the 2013 Elections represents
the trust of his constituents in him. To disqualify him from public office for the isolated and reasonable use
of his American passport would be to set aside the clear and unmistakable sovereign will of the people. It
will impose an unreasonable burden over his and the electorate's fundamental right to suffrage.

ACCORDINGLY, I vote to GRANT the Petition.

MARVIC M.V.F. LEONEN

Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 201043 June 16, 2014

REPUBLIC OF THE PHILIPPINES, represented by the Armed Forces of the Philippines Finance
Center (AFPFC), Petitioner,
vs.
DAISY R. YAHON, Respondent.

DECISION

VILLARAMA, JR., J.:

Before the Court is a petition for review on certiorari under Rule 45 which seeks to nullify and set aside the
Decision1 dated November 29, 2011 and Resolution2 dated March 9, 2012 of the Court of Appeals (CA)
Mindanao Station in CA-G.R. SP No. 02953-MIN. The CA affirmed the orders and decision of the Regional
Trial Court (RTC) of Cagayan de Oro City, Branch 22 granting temporary and permanent protection orders,
and denying the motion to lift the said temporary protection order (TPO).

Daisy R. Yahon (respondent) filed a petition for the issuance of protection order under the provisions of
Republic Act (R.A.) No. 9262,3 otherwise known as the "Anti-Violence Against Women and Their Children
Act of 2004," against her husband, S/Sgt. Charles A. Yahon (S/Sgt. Yahon), an enlisted personnel of the
Philippine Army who retired in January 2006. Respondent and S/Sgt. Yahon were married on June 8, 2003.
The couple did not have any child but respondent has a daughter with her previous live-in partner.

On September 28, 2006, the RTC issued a TPO, as follows:

Finding the herein petition for the Issuance of Protection Order to be sufficient in form and substance and
to prevent great and irreparable injury to the petitioner, a TEMPORARY PROTECTION ORDER is forthwith
issued to respondent, S/SGT. CHARLES A. YAHON directing him to do the following acts:

1. Respondent is enjoined from threatening to commit or committing further acts of physical abuse and
violence against the petitioner;

2. To stay away at a distance of at least 500 meters from petitioner, her residence or her place of work;

3. To refrain from harassing, annoying, intimidating, contacting or communicating with petitioner; 4.

Respondent is prohibited from using or possessing any firearm or deadly weapon on occasions not related
to his job;

5. To provide reasonable financial spousal support to the petitioner.

The Local Police Officers and the Barangay Officials through the Chairman in the area where the petitioner
and respondent live at Poblacion, Claveria, Misamis Oriental and Bobuntogan, Jasaan, Misamis Oriental
are directed to respond to any request for assistance from the petitioner for the implementation of this order.
They are also directed to accompany the petitioner to their conjugal abode at Purok 2, Bobuntogan, Jasaan,
Misamis Oriental to get her personal belongings in order to insure the safety of the petitioner.

The Deputy Sheriff of this Court is ordered to immediately serve the Temporary Protection Order (TPO)
upon the respondent personally and to seek and obtain the assistance of law enforcement agents, if
needed, for purposes of effecting the smooth implementation of this order.
In the meantime, let copy of this order and petition be served upon the respondent for him to file an
OPPOSITION within a period of five (5) days from receipt hereof and let a Preliminary Conference and
hearing on the merits be set on October 17, 2006 at 2:00 o’clock in the afternoon.

To insure that petitioner can receive a fair share of respondent’s retirement and other benefits, the following
agencies thru their heads are directed to WITHHOLD any retirement, pension and other benefits of
respondent, S/SGT. CHARLES A. YAHON, a member of the Armed Forces of the Philippines assigned at
4ID, Camp Evangelista, Patag, Cagayan de Oro City until further orders from the court:

1. Commanding General/Officer of the Finance Center of the Armed Forces of the Philippines, Camp Emilio
Aguinaldo, Quezon City;

2. The Management of RSBS, Camp Emilio Aguinaldo, Quezon City;

3. The Regional Manager of PAG-IBIG, Mortola St., Cagayan de Oro City.

VIOLATION OF THIS ORDER IS PUNISHABLE BY LAW.

IF THE RESPONDENT APPEARS WITHOUT COUNSEL ON THE DATE OF THE

PRELIMINARYCONFERENCE AND HEARING ON THE MERITS OF THE ISSUANCE OF A
PERMANENT PROTECTION ORDER, THE COURT SHALL NOT RESCHEDULE OR POSTPONE THE
PRELIMINARY CONFERENCE AND HEARING BUT SHALL APPOINT A LAWYER FOR THE
RESPONDENT AND IMMEDIATELY PROCEED WITH THE SAID HEARING.

IF THE RESPONDENT FAILS TO APPEAR ON THE DATE OF THE PRELIMINARY CONFERENCE AND
HEARING ON THE MERITS DESPITE PROPER NOTICE, THE COURT SHALL ALLOW EX-PARTE
PRESENTATION OF EVIDENCE BY THE PETITIONER AND RENDER JUDGMENT ON THE BASIS OF
THE PLEADINGS AND EVIDENCE ON RECORD. NO DELEGATION OF THE RECEPTION OF
EVIDENCE SHALL BE ALLOWED.

SO ORDERED.4 (Emphasis supplied.)

S/Sgt. Yahon, having been personally served with copy of the TPO, appeared during the scheduled pre-
trial but informed the court that he did not yet have a counsel and requested for time to hire his own counsel.
However, he did not hire a counsel nor file an opposition or answer to the petition. Because of his failure to
appear in the subsequent hearings of the case, the RTC allowed the ex-parte presentation of evidence to
determine the necessity of issuance of a Permanent Protection Order (PPO).

Meanwhile, as prayed for by respondent who manifested that S/Sgt. Yahon deliberately refused to give her
spousal support as directed in the TPO (she claimed that she had no source of livelihood since he had told
her to resign from her job and concentrate on keeping their house), the RTC issued another order directing
S/Sgt. Yahon to give respondent spousal support in the amount of ₱4,000.00 per month and fifty percent
(50%) of his retirement benefits which shall be automatically deducted and given directly to respondent.5

In her testimony, respondent also said that S/Sgt. Yahon never complied with the TPO as he continued
making threats and inflicting physical abuse on her person, and failed to give her spousal support as ordered
by the court.

On July 23, 2007, the RTC rendered its Decision,6 as follows:

After careful review and scrutiny of the evidence presented in this case, this court finds that there is a need
to permanently protect the applicant, Daisy R. Yahon from further acts of violence that might be committed
by respondent against her. Evidences showed that respondent who was a member of the Armed Forces of
the Philippines assigned at the Headquarters 4ID Camp Evangelista, Cagayan de Oro City had been
repeatedly inflicting physical, verbal, emotional and economic abuse and violence upon the petitioner.
Respondent in several instances had slapped, mauled and punched petitioner causing her physical harm.
Exhibits G and D are medical certificates showing physical injuries suffered by petitioner inflicted by the
respondent at instances of their marital altercations. Respondent at the height of his anger often poked a
gun on petitioner and threatened to massacre her and her child causing them to flee for their lives and
sought refuge from other people. He had demanded sex from petitioner at an unreasonable time when she
was sick and chilling and when refused poked a gun at her. Several police blotters were offered as evidence
by petitioner documenting the incidents when she was subjected to respondent’s ill temper and ill treatment.
Verbally, petitioner was not spared from respondent’s abuses by shouting at her that he was wishing she
would die and he would celebrate if it happens and by calling and sending her threatening text messages.
These incidents had caused petitioner great psychological trauma causing her [to] fear for her life and these
forced her to seek refuge from the court for protection. Economically, petitioner was also deprived by
respondent of her spousal support despite order of the court directing him to give a monthly support of
Php4,000.00. In view of the foregoing, this court finds a need to protect the life of the petitioner not only
physically but also emotionally and psychologically.

Based on the evidence presented, both oral and documentary, and there being no controverting evidence
presented by respondent, this Court finds that the applicant has established her case by preponderance of
evidence.

WHEREFORE, premises considered, judgment is hereby rendered GRANTING the petition, thus, pursuant
to Sec. 30 of A.M. No. 04-10-1-SC, let a PERMANENT PROTECTION ORDER be issued immediately and
respondent, S/Sgt. CHARLES A.YAHON is ordered to give to petitioner, DAISY R. YAHON the amount of
FOUR THOUSAND PESOS (Php4,000.00) per month by way of spousal support.

Pursuant to the order of the court dated February 6, 2007, respondent, S/Sgt. Charles A. Yahon is directed
to give it to petitioner 50% of whatever retirement benefits and other claims that may be due or released to
him from the government and the said share of petitioner shall be automatically deducted from respondent’s
benefits and claims and be given directly to the petitioner, Daisy R. Yahon.

Let copy of this decision be sent to the Commanding General/Officer of Finance Center of the Armed Forces
of the Philippines, Camp Emilio Aguinaldo, Quezon City; the Management of RSBS, Camp Emilio
Aguinaldo, Quezon City and the Regional Manager of PAG-IBIG, Mortola St., Cagayan de Oro City for their
guidance and strict compliance.

SO ORDERED.7 (Emphasis supplied.)

Herein petitioner Armed Forces of the Philippines Finance Center (AFPFC), assisted by the Office of the
Judge Advocate General (OTJAG), AFP, filed before the RTC a Manifestation and Motion (To Lift
Temporary Protection Order Against the AFP)8 dated November 10, 2008. Stating that it was making a
limited and special appearance, petitioner manifested that on August 29, 2008, it furnished the AFP Pension
and Gratuity Management Center (PGMC) copy of the TPO for appropriate action. The PGMC, on
September 2, 2008, requested the Chief, AFPFC the temporary withholding of the thirty-six (36) Months
Lump Sum (MLS) due to S/Sgt. Yahon. Thereafter, on October 29, 2008, PGMC forwarded a letter to the
Chief of Staff, AFP for the OTJAG for appropriate action on the TPO, and requesting for legal opinion as to
the propriety of releasing the 36 MLS of S/Sgt. Yahon. Petitioner informed the RTC that S/Sgt. Yahon’s
check representing his 36 MLS had been processed and is ready for payment by the AFPFC, but to date
said check has not been claimed by respondent.

Petitioner further asserted that while it has initially discharged its obligation under the TPO, the RTC had
not acquired jurisdiction over the military institution due to lack of summons, and hence the AFPFC cannot
be bound by the said court order. Additionally, petitioner contended that the AFPFC is not a party-in-interest
and is a complete stranger to the proceedings before the RTC on the issuance of TPO/PPO. Not being
impleaded in the case, petitioner lamented that it was not afforded due process and it was thus improper
to issue execution against the AFPFC. Consequently, petitioner emphasized its position that the AFPFC
cannot be directed to comply with the TPO without violating its right to procedural due process.
In its Order9 dated December 17, 2008, the RTC denied the aforesaid motion for having been filed out of
time. It noted that the September 28, 2006 TPO and July 23, 2007 Decision granting Permanent Protection
Order (PPO) to respondent had long become final and executory.

Petitioner’s motion for reconsideration was likewise denied under the RTC’s Order 10 dated March 6, 2009.

On May 27, 2009, petitioner filed a petition for certiorari before the CA praying for the nullification of the
aforesaid orders and decision insofar as it directs the AFPFC to automatically deduct from S/Sgt. Yahon’s
retirement and pension benefits and directly give the same to respondent as spousal support, allegedly
issued with grave abuse of discretion amounting to lack of jurisdiction. Respondent filed her Comment with
Prayer for Issuance of Preliminary Injunction, manifesting that there is no information as to whether S/Sgt.
Yahon already received his retirement benefit and that the latter has repeatedly violated the TPO,
particularly on the provision of spousal support.

After due hearing, the CA‘s Twenty-Second Division issued a Resolution11 granting respondent’s
application, viz:

Upon perusal of the respective pleadings filed by the parties, the Court finds meritorious private
respondent’s application for the issuance of an injunctive relief. While the 36-month lump sum retirement
benefits of S/Sgt. Charles A. Yahon has already been given to him, yet as admitted by petitioner itself, the
monthly pension after the mentioned retirement benefits has not yet been released to him. It appears that
the release of such pension could render ineffectual the eventual ruling of the Court in this Petition.

IN VIEW OF THE FOREGOING, let a WRIT OF PRELIMINARY INJUNCTION issue enjoining the Armed
Forces of the Philippines Finance Center, its employees, agents, representatives, and any all persons
acting on its behalf, from releasing the remaining pension that may be due to S/Sgt. Charles A. Yahon.

SO ORDERED.12

By Decision dated November 29, 2011, the CA denied the petition for certiorari and affirmed the assailed
orders and decision of the RTC. The CA likewise denied petitioner’s motion for reconsideration.

In this petition, the question of law presented is whether petitioner military institution may be ordered to
automatically deduct a percentage from the retirement benefits of its enlisted personnel, and to give the
same directly to the latter’s lawful wife as spousal support in compliance with a protection order issued by
the RTC pursuant to R.A. No. 9262.

A protection order is an order issued by the court to prevent further acts of violence against women and
their children, their family or household members, and to grant other necessary relief. Its purpose is to
safeguard the offended parties from further harm, minimize any disruption in their daily life and facilitate the
opportunity and ability to regain control of their life.13 The protection orders issued by the court may be a
Temporary Protection Order (TPO) or a Permanent Protection Order (PPO), while a protection order that
may be issued by the barangay shall be known as a Barangay Protection Order (BPO).14

Section 8 of R.A. No. 9262 enumerates the reliefs that may be included in the TPO, PPO or BPO, to wit:

(a) Prohibition of the respondent from threatening to commit or committing, personally or through another,
any of the acts mentioned in Section 5 of this Act;

(b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise
communicating with the petitioner, directly or indirectly;

(c) Removal and exclusion of the respondent from the residence of the petitioner, regardless of ownership
of the residence, either temporarily for the purpose of protecting the petitioner, or permanently where no
property rights are violated, and if respondent must remove personal effects from the residence, the court
shall direct a law enforcement agent to accompany the respondent to the residence, remain there until
respondent has gathered his things and escort respondent from the residence;

(d) Directing the respondent to stay away from petitioner and any designated family or household member
at a distance specified by the court, and to stay away from the residence, school, place of employment, or
any specified place frequented by the petitioner and any designated family or household member;

(e) Directing lawful possession and use by petitioner of an automobile and other essential personal effects,
regardless of ownership, and directing the appropriate law enforcement officer to accompany the petitioner
to the residence of the parties to ensure that the petitioner is safely restored to the possession of the
automobile and other essential personal effects, or to supervise the petitioner’s or respondent’s removal of
personal belongings;

(f) Granting a temporary or permanent custody of a child/children to the petitioner;

(g) Directing the respondent to provide support to the woman and/or her child if entitled to legal support.
Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income
or salary of the respondent to be withheld regularly by the respondent's employer for the same to be
automatically remitted directly to the woman. Failure to remit and/or withhold or any delay in the remittance
of support to the woman and/or her child without justifiable cause shall render the respondent or his
employer liable for indirect contempt of court;

(h) Prohibition of the respondent from any use or possession of any firearm or deadly weapon and order
him to surrender the same to the court for appropriate disposition by the court, including revocation of
license and disqualification to apply for any license to use or possess a firearm. If the offender is a law
enforcement agent, the court shall order the offender to surrender his firearm and shall direct the
appropriate authority to investigate on the offender and take appropriate action on matter;

(i) Restitution for actual damages caused by the violence inflicted, including, but not limited to, property
damage, medical expenses, child care expenses and loss of income;

(j) Directing the DSWD or any appropriate agency to provide petitioner temporary shelter and other social
services that the petitioner may need; and

(k) Provision of such other forms of relief as the court deems necessary to protect and provide for the safety
of the petitioner and any designated family or household member, provided petitioner and any designated
family or household member consents to such relief. (Emphasis supplied.)

Petitioner argues that it cannot comply with the RTC’s directive for the automatic deduction of 50% from
S/Sgt. Yahon’s retirement benefits and pension to be given directly to respondent, as it contravenes an
explicit mandate under the law governing the retirement and separation of military personnel.

The assailed provision is found in Presidential Decree (P.D.) No. 1638, 15 which states: Section 31. The
benefits authorized under this Decree, except as provided herein, shall not be subject to attachment,
garnishment, levy, execution or any tax whatsoever; neither shall they be assigned, ceded, or conveyed to
any third person: Provided, That if a retired or separated officer or enlisted man who is entitled to any benefit
under this Decree has unsettled money and/or property accountabilities incurred while in the active service,
not more than fifty per centum of the pension gratuity or other payment due such officer or enlisted man or
his survivors under this Decree may be withheld and be applied to settle such accountabilities. (Emphasis
supplied.)

A similar provision is found in R.A. No. 8291, otherwise known as the "Government Service Insurance
System Act of 1997," which reads:

SEC. 39. Exemption from Tax, Legal Process and Lien -- x x x

 xxxx

The funds and/or the properties referred to herein as well as the benefits, sums or monies corresponding
to the benefits under this Act shall be exempt from attachment, garnishment, execution, levy or other
processes issued by the courts, quasi-judicial agencies or administrative bodies including Commission on
Audit (COA) disallowances and from all financial obligations of the members, including his pecuniary
accountability arising from or caused or occasioned by his exercise or performance of his official functions
or duties, or incurred relative to or in connection with his position or work except when his monetary liability,
contractual or otherwise, is in favor of the GSIS.

In Sarmiento v. Intermediate Appellate Court,16 we held that a court order directing the Philippine National
Bank to refrain from releasing to petitioner all his retirement benefits and to deliver one-half of such
monetary benefits to plaintiff as the latter’s conjugal share is illegal and improper, as it violates Section 26
of CA 186 (old GSIS Law) which exempts retirement benefits from execution.

The foregoing exemptions have been incorporated in the 1997 Rules of Civil Procedure, as amended, which
governs execution of judgments and court orders. Section 13 of Rule 39 enumerates those properties which
are exempt from execution:

SEC. 13. Property exempt from execution.– Except as otherwise expressly provided by law, the following
property, and no other, shall be exempt from execution:

xxxx

(l) The right to receive legal support, or money or property obtained as such support, or any pension or
gratuity from the Government;(Emphasis supplied.)

It is basic in statutory construction that in case of irreconcilable conflict between two laws, the later
enactment must prevail, being the more recent expression of legislative will. 17 Statutes must be so
construed and harmonized with other statutes as to form a uniform system of jurisprudence. 18 However, if
several laws cannot be harmonized, the earlier statute must yield to the later enactment. The later law is
the latest expression of the legislative will.19

We hold that Section 8(g) of R.A. No. 9262, being a later enactment, should be construed as laying down
an exception to the general rule above-stated that retirement benefits are exempt from execution. The law
itself declares that the court shall order the withholding of a percentage of the income or salary of the
respondent by the employer, which shall be automatically remitted directly to the woman "[n]otwithstanding
other laws to the contrary."

Petitioner further contends that the directive under the TPO to segregate a portion of S/Sgt. Yahon’s
retirement benefits was illegal because said moneys remain as public funds, citing the case of Pacific
Products v. Ong.20 In that case, this Court sustained the CA when it held that the garnishment of the amount
of ₱10,500 payable to BML Trading and Supply while it was still in the possession of the Bureau of
Telecommunications was illegal and therefore, null and void. The CA therein relied on the previous rulings
in Director of Commerce and Industry v. Concepcion21 and Avendano v. Alikpala, et al.22 wherein this Court
declared null and void the garnishment of the salaries of government employees.

Citing the two aforementioned cases, we thus declared in Pacific Products:

A rule, which has never been seriously questioned, is that money in the hands of public officers, although
it may be due government employees, is not liable to the creditors of these employees in the process of
garnishment. One reason is, that the State, by virtue of its sovereignty may not be sued in its own courts
except by express authorization by the Legislature, and to subject its officers to garnishment would be to
permit indirectly what is prohibited directly. Another reason is that moneys sought to be garnished, as long
as they remain in the hands of the disbursing officer of the Government, belong to the latter, although the
defendant in garnishment may be entitled to a specific portion thereof. And still another reason which covers
both of the foregoing is that every consideration of public policy forbids it.23

We disagree.

Section 8(g) of R.A. No. 9262 used the general term "employer," which includes in its coverage the military
institution, S/Sgt. Yahon’s employer. Where the law does not distinguish, courts should not distinguish.
Thus, Section 8(g) applies to all employers, whether private or government.

It bears stressing that Section 8(g) providing for spousal and child support, is a support enforcement
legislation.1âwphi1 In the United States, provisions of the Child Support Enforcement Act 24 allow
garnishment of certain federal funds where the intended recipient has failed to satisfy a legal obligation of
child support. As these provisions were designed "to avoid sovereign immunity problems" and provide that
"moneys payable by the Government to any individual are subject to child support enforcement
proceedings," the law is clearly intended to "create a limited waiver of sovereign immunity so that state
courts could issue valid orders directed against Government agencies attaching funds in their
possession."25

This Court has already ruled that R.A. No. 9262 is constitutional and does not violate the equal protection
clause. In Garcia v. Drilon26 the issue of constitutionality was raised by a husband after the latter failed to
obtain an injunction from the CA to enjoin the implementation of a protection order issued against him by
the RTC. We ruled that R.A. No. 9262 rests on real substantial distinctions which justify the classification
under the law: the unequal power relationship between women and men; the fact that women are more
likely than men to be victims of violence; and the widespread bias and prejudice against women.

We further held in Garcia that the classification is germane to the purpose of the law, viz:

The distinction between men and women is germane to the purpose of R.A. 9262, which is to address
violence committed against women and children, spelled out in its Declaration of Policy, as follows:

SEC. 2. Declaration of Policy.– It is hereby declared that the State values the dignity of women and children
and guarantees full respect for human rights. The State also recognizes the need to protect the family and
its members particularly women and children, from violence and threats to their personal safety and
security.

Towards this end, the State shall exert efforts to address violence committed against women and children
in keeping with the fundamental freedoms guaranteed under the Constitution and the provisions of the
Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination
Against Women, Convention on the Rights of the Child and other international human rights instruments of
which the Philippines is a party.27

Under R.A. No. 9262, the provision of spousal and child support specifically address one form of violence
committed against women – economic abuse.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent which
includes, but is not limited to the following:

1. Withdrawal of financial support or preventing the victim from engaging in any legitimate profession,
occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious
and moral grounds as defined in Article 73 of the Family Code;

2. Deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the
conjugal, community or property owned in common;

3. Destroying household property;

4. Controlling the victims' own money or properties or solely controlling the conjugal money or properties.28
The relief provided in Section 8(g) thus fulfills the objective of restoring the dignity of women who are victims
of domestic violence and provide them continued protection against threats to their personal safety and
security.

"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is afforded
all the remedies necessary to curtail access by a perpetrator to the victim. This serves to safeguard the
victim from greater risk of violence; to accord the victim and any designated family or household member
safety in the family residence, and to prevent the perpetrator from committing acts that jeopardize the
employment and support of the victim. It also enables the court to award temporary custody of minor
children to protect the children from violence, to prevent their abduction by the perpetrator and to ensure
their financial support."29

WHEREFORE, the petition is DENIED for lack of merit. The Decision dated November 29, 2011 and
Resolution dated March 9, 2012 of the Court of Appeals Mindanao Station in CA-G.R. SP No. 02953-MIN
are AFFIRMED and UPHELD.

No costs.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO LUCAS P. BERSAMIN

Associate Justice Associate Justice
BIENVENIDO L. REYES
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion of the
Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 115245 July 11, 1995

JUANITO C. PILAR, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court assailing the Resolution dated
April 28, 1994 of the Commission on Elections (COMELEC) in UND No. 94-040.

On March 22, 1992, petitioner Juanito C. Pilar filed his certificate of candidacy for the position of member
of the Sangguniang Panlalawigan of the Province of Isabela.

On March 25, 1992, petitioner withdrew his certificate of candidacy.

In M.R. Nos. 93-2654 and 94-0065 dated November 3, 1993 and February 13, 1994 respectively, the
COMELEC imposed upon petitioner the fine of Ten Thousand Pesos (P10,000.00) for failure to file his
statement of contributions and expenditures.

In M.R. No. 94-0594 dated February 24, 1994, the COMELEC denied the motion for reconsideration of
petitioner and deemed final M.R. Nos. 93-2654 and 94-0065 (Rollo, p. 14).

Petitioner went to the COMELEC En Banc (UND No. 94-040), which denied the petition in a Resolution
dated April 28, 1994 (Rollo, pp. 10-13).

Hence, this petition for certiorari.

We dismiss the petition.

II

Section 14 of R.A. No. 7166 entitled "An Act Providing for Synchronized National and Local Elections and
for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes" provides as follows:

Statement of Contributions and Expenditures: Effect of Failure to File Statement. Every candidate
and treasurer of the political party shall, within thirty (30) days after the day of the election, file in
duplicate with the offices of the Commission the full, true and itemized statement of all contributions
and expenditures in connection with the election.

No person elected to any public office shall enter upon the duties of his office until he has filed the statement
of contributions and expenditures herein required.

The same prohibition shall apply if the political party which nominated the winning candidate fails to file the
statement required herein within the period prescribed by this Act.
Except candidates for elective barangay office, failure to file the statements or reports in connection with
electoral contributions and expenditures as required herein shall constitute an administrative offense for
which the offenders shall be liable to pay an administrative fine ranging from One Thousand Pesos (
P1,000.00) to Thirty Thousand Pesos (P30,000.00), in the discretion of the Commission.

The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be
enforceable by a writ of execution issued by the Commission against the properties of the offender.

It shall be the duty of every city or municipal election registrar to advise in writing, by personal delivery or
registered mail, within five (5) days from the date of election all candidates residing in his jurisdiction to
comply with their obligation to file their statements of contributions and expenditures.

For the commission of a second or subsequent offense under this Section, the administrative fine shall be
from Two Thousand Pesos (P2,000.00) to Sixty Thousand Pesos (P60,000.00), in the discretion of the
Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office
(Emphasis supplied).

To implement the provisions of law relative to election contributions and expenditures, the COMELEC
promulgated on January 13, 1992 Resolution No. 2348 (Re: Rules and Regulations Governing Electoral
Contributions and Expenditures in Connection with the National and Local Elections on
May 11, 1992). The pertinent provisions of said Resolution are:

Sec. 13. Statement of contributions and expenditures: Reminders to candidates to file statements.
Within five (5) days from the day of the election, the Law Department of the Commission, the
regional election director of the National Capital Region, the provincial election supervisors and the
election registrars shall advise in writing by personal delivery or registered mail all candidates who
filed their certificates of candidacy with them to comply with their obligation to file their statements
of contributions and expenditures in connection with the elections. Every election registrar shall
also advise all candidates residing in his jurisdiction to comply with said obligation (Emphasis
supplied).

Sec. 17. Effect of failure to file statement. (a) No person elected to any public office shall enter upon the
duties of his office until he has filed the statement of contributions and expenditures herein required.

The same prohibition shall apply if the political party which nominated the winning candidates fails to file
the statement required within the period prescribed by law.

(b) Except candidates for elective barangay office, failure to file statements or reports in connection with
the electoral contributions and expenditures as required herein shall constitute an administrative offense
for which the offenders shall be liable to pay an administrative fine ranging from One Thousand Pesos
(P1,000) to Thirty Thousand Pesos (P30,000), in the discretion of the Commission.

The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be
enforceable by a writ of execution issued by the Commission against the properties of the offender.

For the commission of a second or subsequent offense under this section, the administrative fine shall be
from Two Thousand Pesos (P2,000) to Sixty Thousand Pesos (P60,000), in the discretion of the
Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office.

Petitioner argues that he cannot be held liable for failure to file a statement of contributions and expenditures
because he was a "non-candidate," having withdrawn his certificates of candidacy three days after its filing.
Petitioner posits that "it is . . . clear from the law that candidate must have entered the political contest, and
should have either won or lost" (Rollo, p. 39).

Petitioner's argument is without merit.

Section 14 of R.A. No. 7166 states that "every candidate" has the obligation to file his statement of
contributions and expenditures.

Well-recognized is the rule that where the law does not distinguish, courts should not distinguish, Ubi lex
non distinguit nec nos distinguere debemos (Philippine British Assurance Co. Inc. v. Intermediate Appellate
Court, 150 SCRA 520 [1987]; cf Olfato v. Commission on Elections, 103 SCRA 741 [1981]). No distinction
is to be made in the application of a law where none is indicated (Lo Cham v. Ocampo, 77 Phil. 636 [1946]).

In the case at bench, as the law makes no distinction or qualification as to whether the candidate pursued
his candidacy or withdrew the same, the term "every candidate" must be deemed to refer not only to a
candidate who pursued his campaign, but also to one who withdrew his candidacy.

The COMELEC, the body tasked with the enforcement and administration of all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum, and recall (The Constitution of the
Republic of the Philippines, Art. IX(C), Sec. 2[1]), issued Resolution No. 2348 in implementation or
interpretation of the provisions of Republic Act No. 7166 on election contributions and expenditures. Section
13 of Resolution No. 2348 categorically refers to "all candidates who filed their certificates of candidacy."

Furthermore, Section 14 of the law uses the word "shall." As a general rule, the use of the word "shall" in a
statute implies that the statute is mandatory, and imposes a duty which may be enforced , particularly if
public policy is in favor of this meaning or where public interest is involved. We apply the general rule
(Baranda v. Gustilo, 165 SCRA 757 [1988]; Diokno v. Rehabilitation Finance Corporation, 91 Phil. 608
[1952]).

The state has an interest in seeing that the electoral process is clean, and ultimately expressive of the true
will of the electorate. One way of attaining such objective is to pass legislation regulating contributions and
expenditures of candidates, and compelling the publication of the same. Admittedly, contributions and
expenditures are made for the purpose of influencing the results of the elections (B.P. Blg. 881, Sec. 94;
Resolution No. 2348, Sec. 1). Thus, laws and regulations prescribe what contributions are prohibited (B.P.
Blg. 881, Sec. 95, Resolution No. 2348, Sec. 4), or unlawful (B.P. Blg. 881, Sec. 96), and what expenditures
are authorized (B.P. Blg. 881, Sec. 102; R.A. No. 7166, Sec. 13; Resolution No. 2348, Sec. 7) or lawful
(Resolution No. 2348, Sec. 8).

Such statutes are not peculiar to the Philippines. In "corrupt and illegal practices acts" of several states in
the United States, as well as in federal statutes, expenditures of candidates are regulated by requiring the
filing of statements of expenses and by limiting the amount of money that may be spent by a candidate.
Some statutes also regulate the solicitation of campaign contributions (26 Am Jur 2d, Elections § 287).
These laws are designed to compel publicity with respect to matters contained in the statements and to
prevent, by such publicity, the improper use of moneys devoted by candidates to the furtherance of their
ambitions (26 Am Jur 2d, Elections § 289). These statutes also enable voters to evaluate the influences
exerted on behalf of candidates by the contributors, and to furnish evidence of corrupt practices for
annulment of elections (Sparkman v. Saylor [Court of Appeals of Kentucky], 180 Ky. 263, 202 S.W. 649
[1918]).

State courts have also ruled that such provisions are mandatory as to the requirement of filing (State ex rel.
Butchofsky v. Crawford [Court of Civil Appeals of Texas], 269 S.W. 2d 536 [1954]; Best v. Sidebottom, 270
Ky. 423,109 S.W. 2d 826 [1937]; Sparkman v. Saylor, supra.)

It is not improbable that a candidate who withdrew his candidacy has accepted contributions and incurred
expenditures, even in the short span of his campaign. The evil sought to be prevented by the law is not all
too remote.

It is notesworthy that Resolution No. 2348 even contemplates the situation where a candidate may not have
received any contribution or made any expenditure. Such a candidate is not excused from filing a statement,
and is in fact required to file a statement to that effect. Under Section 15 of Resolution No. 2348, it is
provided that "[i]f a candidate or treasurer of the party has received no contribution, made no expenditure,
or has no pending obligation, the statement shall reflect such fact."

Lastly, we note that under the fourth paragraph of Section 73 of the B.P. Blg. 881 or the Omnibus Election
Code of the Philippines, it is provided that "[t]he filing or withdrawal of certificate of candidacy shall not
affect whatever civil, criminal or administrative liabilities which a candidate may have incurred." Petitioner's
withdrawal of his candidacy did not extinguish his liability for the administrative fine.

WHEREFORE, the petition is DISMISSED.

Narvasa, C.J., Feliciano, Regalado, Davide, Jr., Romero, Bellosillo, Puno, Vitug, Mendoza and Francisco,
JJ., concur.

Kapunan, J., is on leave.

Separate Opinions

MELO, J., dissenting:

The majority opinion is to the effect that every candidate, including one who has withdrawn his certificate
of candidacy, is obliged to file his statement of contributions and expenditures in line with Section 14 of
Republic Act No. 7166 vis-a-vis the pertinent portions of Comelec Resolution No. 2348. I must concede
that the use of the word "shall" in the main statute as well as the implementing rules generally suggest
mandatoriness as to cover all candidates.

But is an anspirant for public office who had a sudden change of heart, so to speak, still considered a
candidate to begin with? I am of the impression that he is not and is thus not bound to render an accounting
subsequent to election for the simple reason that the term 'candidate' is used to designate a person who
actually submits himself and is voted for at our election (Santos vs. Miranda, 35 Phil. 643, 648 (1916) citing
State vs. Hirsch, 125 Ind., 207; 9 L.R.A. 107; Moreno, Philippine Law Dictionary, 1972 2nd ed., p. 84)
Certainly, one who withdraws his certificate of candidacy 3 days after the filing thereof, can not be voted
for at an election. And considering the shortness of the period of 3 days from the filing to the withdrawal of
the certificate of candidacy, petitioner cannot be accused, as indeed there is no such charge, of utilizing his
aborted candidacy for purposes to raise funds or to extort money from other candidates in exchange for the
withdrawal.

I, therefore, vote to grant the petition.

Padilla, J., concurs.

Separate Opinions

MELO, J., dissenting:

The majority opinion is to the effect that every candidate, including one who has withdrawn his certificate
of candidacy, is obliged to file his statement of contributions and expenditures in line with Section 14 of
Republic Act No. 7166 vis-a-vis the pertinent portions of Comelec Resolution No. 2348. I must concede
that the use of the word "shall" in the main statute as well as the implementing rules generally suggest
mandatoriness as to cover all candidates.

But is an aspirant for public office who had a sudden change of heart, so to speak, still considered a
candidate to begin with? I am of the impression that he is not and is thus not bound to render an accounting
subsequent to election for the simple reason that the term 'candidate' is used to designate a person who
actually submits himself and is voted for at our election (Santos vs. Miranda, 35 Phil. 643, 648 (1916) citing
State vs. Hirsch, 125 Ind., 207; 9 L.R.A. 107; Moreno, Philippine Law Dictionary, 1972 2nd ed., p. 84)
Certainly, one who withdraws his certificate of candidacy 3 days after the filing thereof, can not be voted
for at an election. And considering the shortness of the period of 3 days from the filing to the withdrawal of
the certificate of candidacy, petitioner cannot be accused, as indeed there is no such charge, of utilizing his
aborted candidacy for purposes to raise funds or to extort money from other candidates in exchange for the
withdrawal.

I, therefore, vote to grant the petition.

Padilla, J., concurs.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 110898 February 20, 1996

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. JUDGE ANTONIO C. EVANGELISTA, as Presiding Judge of Branch XXI, 10th Judicial Region, RTC
of Misamis Oriental, Cagayan de Oro City, and GRILDO S. TUGONON, respondents.

DECISION

MENDOZA, J.:

Private respondent Grildo S. Tugonan was charged with frustrated homicide in the Regional Trial Court of
Misamis Oriental (Branch 21), the information against him alleging

That on or about the 26th day of May, 1988, at more or less 9:00 o'clock in the evening at Barangay
Publican+.3, Municipality of Villanueva, Province of Misamis Oriental, Republic of the Philippines and within
the jurisdiction of this Honorable Court, the above-named accused with intent to kill and with the use of a
knife, which he was then conveniently provided of, did then and there willfully, unlawfully and feloniously
assault, attack and stab Roque T. Bade thereby inflicting upon him the following injuries, to wit:

Stab wound, right iliac area,

0.5 cm. penetrating non
perforating lacerating posterior
peritoneum, 0,5 cm.

thus performing all the acts of execution which would produce the crime of Homicide as a consequence but
which, nevertheless, did not produce it by reason of causes independent of the will of the accused, that is
by timely medical attendance which prevented his death.

CONTRARY TO and in violation of Article 249 in relation to Article 6 of the Revised Penal Code.

After trial he was found guilty and sentenced to one year of prision correccional in its minimum period and
ordered to pay to the offended party P5,000.00 for medical expense, without subsidiary imprisonment, and
the costs. The RTC appreciated in his favor the privileged mitigating circumstances of incomplete self-
defense and the mitigating circumstance of voluntary surrender.

On appeal the Court of Appeals affirmed private respondent's conviction but modified his sentence by
imposing on him an indeterminate penalty of 2 months of arresto mayor, as minimum, to 2 years and 4
months of prision correccional, as maximum.1

On December 21, 1992, respondent Judge Antonio C. Evangelista of the RTC set the case for
repromulgation on January 4, 1993.

On December 28, 1992, private respondent filed a petition for probation,2 alleging that (1) he possessed all
the qualifications and none of the disqualifications for probation under P.D. No. 968, as amended; (2) the
Court of Appeals has in fact reduced the penalty imposed on him by the trial court; (3) in its resolution, the
Court of Appeals took no action on a petition for probation which he had earlier filed with it so that the
petition could be filed with the trial court; (4) in the trial court's decision, two mitigating circumstances of
incomplete self-defense and voluntarily surrender were appreciated in his favor; and (5) in Santos To v.
Paño,3 the Supreme Court upheld the right of the accused to probation notwithstanding the fact that he had
appealed from his conviction by the trial court.
On February 2, 1993, the RTC ordered private respondent to report for interview to the Provincial Probation
Officer. The Provincial Probation Officer on the other hand was required to submit his report with
recommendation to the court within 60 days.4

On February 18, 1993, Chief Probation and Parole Officer Isias B. Valdehueza recommended denial of
private respondent's application for probation on the ground that by appealing the sentence of the trial court,
when he could have then applied for probation, private respondent waived the right to make his application.
The Probation Officer thought the present case to be distinguishable from Santos To v. Paño in the sense
that in this case the original sentence imposed on private respondent by the trial court (1 year of
imprisonment) was probationable and there was no reason for private respondent not to have filed his
application for probation then, whereas in Santos To v. Paño the penalty only became probationable after
it had been reduced as a result of the appeal.

On April 16, 1993 Valdehueza reiterated5 his "respectful recommendation that private respondent's
application for probation be denied and that a warrant of arrest be issued for him to serve his sentence in
jail."

The RTC set aside the Probation Officer's recommendation and granted private respondent's application
for probation in its order of April 23, 1993,6 Hence this petition by the prosecution.

The issue in this case is whether the RTC committed a grave abuse of its discretion by granting private
respondent's application for probation despite the fact that he had appealed from the judgment of his
conviction of the trial court.

The Court holds that it did.

Until its amendment by P.D. No. 1990 in 1986, it was possible under P.D. No. 986, otherwise known as the
Probation Law, for the accused to take his chances on appeal by allowing probation to be granted even
after an accused had appealed his sentence and failed to obtain an acquittal, just so long as he had not yet
started to serve the sentence.7 Accordingly, in Santos To v. Paño, it was held that the fact that the accused
had appealed did not bar him from applying for probation especially because it was as a result of the appeal
that his sentence was reduced and made the probationable limit.

The law was, however, amended by P.D. No. 1990 which took effect on January 15, 1986 8 precisely to put
a stop to the practice of appealing from judgments of conviction even if the sentence is probationable for
the purpose of securing an acquittal and applying for probation only if the accused fails in his bid. Thus, as
amended by P.D. No, 1990, §4 of the Probation Law now reads:

§4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have
convicted and sentenced a defendant, and upon application by said defendant within the period for
perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such
period and upon such terms and conditions as it may deem best; Provided, That no application for probation
shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court. The filing of the application shall be deemed a
waiver of the right to appeal.

An order granting or denying probation shall not be appealable. (Emphasis added).

Since private respondent filed his application for probation on December 28, 1992, after P.D. No. 1990 had
taken effect,9 it is covered by the prohibition that "no application for probation shall be entertained or granted
if the defendant has perfected the appeal from the judgment of conviction" and that "the filing of the
application shall be deemed a waiver of the right to appeal," Having appealed from the judgment of the trial
court and having applied for probation only after the Court of Appeals had affirmed his conviction, private
respondent was clearly precluded from the benefits of probation.
Private respondent argues, however, that a distinction should be drawn between meritorious appeals (like
his appeal notwithstanding the appellate court's affirmance of his conviction) and unmeritorious appeals.
But the law does not make any distinction and so neither should the Court. In fact if an appeal is truly
meritorious the accused would be set free and not only given probation. Private respondent's original
sentence (1 year of prision correccional in its minimum period) and the modified sentence imposed by the
Court of Appeals (2 months of arresto mayor, as minimum, to 2 years and 4 months of prision correccional,
as maximum) are probationable. Thus the fact that he appealed meant that private respondent was taking
his chances which the law precisely frowns upon. This is precisely the evil that the amendment in P.D. No.
1990 sought to correct, since in the words of the preamble to the amendatory law, "probation was not
intended as an escape hatch and should not be used to obstruct and delay the administration of justice, but
should be availed of at the first opportunity by offenders who are willing to be reformed and rehabilitated."

The ruling of the RTC that "[h]aving not perfected an appeal against the Court of Appeals decision, [private
respondent] is, therefore, not covered by [the amendment in] P.D. 1990" is an obvious misreading of the
law. The perfection of the appeal referred in the law refers to the .appeal taken from a judgment of conviction
by the trial court and not that of the appellate court, since under the law an application for probation is filed
with the trial court which can only grant the same "after it shall have convicted and sentenced [the]
defendant, and upon application by said defendant within the period for perfecting an appeal. "Accordingly,
in Llamado v. Court of Appeals, 10 it was held that the petitioner who had appealed his sentence could not
subsequently apply for probation.

WHEREFORE, the petition is GRANTED and the order of April 23, 1993 of the Regional Trial Court of
Misamis Oriental (Branch 21) granting probation to private respondent Grildo S. Tugonon is SET ASIDE.

SO ORDERED.

Regalado, Romero and Puno, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 110898 February 20, 1996

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. JUDGE ANTONIO C. EVANGELISTA, as Presiding Judge of Branch XXI, 10th Judicial Region, RTC
of Misamis Oriental, Cagayan de Oro City, and GRILDO S. TUGONON, respondents.

DECISION

MENDOZA, J.:

Private respondent Grildo S. Tugonan was charged with frustrated homicide in the Regional Trial Court of
Misamis Oriental (Branch 21), the information against him alleging

That on or about the 26th day of May, 1988, at more or less 9:00 o'clock in the evening at Barangay
Publican+.3, Municipality of Villanueva, Province of Misamis Oriental, Republic of the Philippines and within
the jurisdiction of this Honorable Court, the above-named accused with intent to kill and with the use of a
knife, which he was then conveniently provided of, did then and there willfully, unlawfully and feloniously
assault, attack and stab Roque T. Bade thereby inflicting upon him the following injuries, to wit:

Stab wound, right iliac area,

0.5 cm. penetrating non
perforating lacerating posterior
peritoneum, 0,5 cm.

thus performing all the acts of execution which would produce the crime of Homicide as a consequence but
which, nevertheless, did not produce it by reason of causes independent of the will of the accused, that is
by timely medical attendance which prevented his death.

CONTRARY TO and in violation of Article 249 in relation to Article 6 of the Revised Penal Code.

After trial he was found guilty and sentenced to one year of prision correccional in its minimum period and
ordered to pay to the offended party P5,000.00 for medical expense, without subsidiary imprisonment, and
the costs. The RTC appreciated in his favor the privileged mitigating circumstances of incomplete self-
defense and the mitigating circumstance of voluntary surrender.

On appeal the Court of Appeals affirmed private respondent's conviction but modified his sentence by
imposing on him an indeterminate penalty of 2 months of arresto mayor, as minimum, to 2 years and 4
months of prision correccional, as maximum.1

On December 21, 1992, respondent Judge Antonio C. Evangelista of the RTC set the case for
repromulgation on January 4, 1993.

On December 28, 1992, private respondent filed a petition for probation,2 alleging that (1) he possessed all
the qualifications and none of the disqualifications for probation under P.D. No. 968, as amended; (2) the
Court of Appeals has in fact reduced the penalty imposed on him by the trial court; (3) in its resolution, the
Court of Appeals took no action on a petition for probation which he had earlier filed with it so that the
petition could be filed with the trial court; (4) in the trial court's decision, two mitigating circumstances of
incomplete self-defense and voluntarily surrender were appreciated in his favor; and (5) in Santos To v.
Paño,3 the Supreme Court upheld the right of the accused to probation notwithstanding the fact that he had
appealed from his conviction by the trial court.
On February 2, 1993, the RTC ordered private respondent to report for interview to the Provincial Probation
Officer. The Provincial Probation Officer on the other hand was required to submit his report with
recommendation to the court within 60 days.4

On February 18, 1993, Chief Probation and Parole Officer Isias B. Valdehueza recommended denial of
private respondent's application for probation on the ground that by appealing the sentence of the trial court,
when he could have then applied for probation, private respondent waived the right to make his application.
The Probation Officer thought the present case to be distinguishable from Santos To v. Paño in the sense
that in this case the original sentence imposed on private respondent by the trial court (1 year of
imprisonment) was probationable and there was no reason for private respondent not to have filed his
application for probation then, whereas in Santos To v. Paño the penalty only became probationable after
it had been reduced as a result of the appeal.

On April 16, 1993 Valdehueza reiterated5 his "respectful recommendation that private respondent's
application for probation be denied and that a warrant of arrest be issued for him to serve his sentence in
jail."

The RTC set aside the Probation Officer's recommendation and granted private respondent's application
for probation in its order of April 23, 1993,6 Hence this petition by the prosecution.

The issue in this case is whether the RTC committed a grave abuse of its discretion by granting private
respondent's application for probation despite the fact that he had appealed from the judgment of his
conviction of the trial court.

The Court holds that it did.

Until its amendment by P.D. No. 1990 in 1986, it was possible under P.D. No. 986, otherwise known as the
Probation Law, for the accused to take his chances on appeal by allowing probation to be granted even
after an accused had appealed his sentence and failed to obtain an acquittal, just so long as he had not yet
started to serve the sentence.7 Accordingly, in Santos To v. Paño, it was held that the fact that the accused
had appealed did not bar him from applying for probation especially because it was as a result of the appeal
that his sentence was reduced and made the probationable limit.

The law was, however, amended by P.D. No. 1990 which took effect on January 15, 1986 8 precisely to put
a stop to the practice of appealing from judgments of conviction even if the sentence is probationable for
the purpose of securing an acquittal and applying for probation only if the accused fails in his bid. Thus, as
amended by P.D. No, 1990, §4 of the Probation Law now reads:

§4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have
convicted and sentenced a defendant, and upon application by said defendant within the period for
perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such
period and upon such terms and conditions as it may deem best; Provided, That no application for probation
shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court. The filing of the application shall be deemed a
waiver of the right to appeal.

An order granting or denying probation shall not be appealable. (Emphasis added).

Since private respondent filed his application for probation on December 28, 1992, after P.D. No. 1990 had
taken effect,9 it is covered by the prohibition that "no application for probation shall be entertained or granted
if the defendant has perfected the appeal from the judgment of conviction" and that "the filing of the
application shall be deemed a waiver of the right to appeal," Having appealed from the judgment of the trial
court and having applied for probation only after the Court of Appeals had affirmed his conviction, private
respondent was clearly precluded from the benefits of probation.
Private respondent argues, however, that a distinction should be drawn between meritorious appeals (like
his appeal notwithstanding the appellate court's affirmance of his conviction) and unmeritorious appeals.
But the law does not make any distinction and so neither should the Court. In fact if an appeal is truly
meritorious the accused would be set free and not only given probation. Private respondent's original
sentence (1 year of prision correccional in its minimum period) and the modified sentence imposed by the
Court of Appeals (2 months of arresto mayor, as minimum, to 2 years and 4 months of prision correccional,
as maximum) are probationable. Thus the fact that he appealed meant that private respondent was taking
his chances which the law precisely frowns upon. This is precisely the evil that the amendment in P.D. No.
1990 sought to correct, since in the words of the preamble to the amendatory law, "probation was not
intended as an escape hatch and should not be used to obstruct and delay the administration of justice, but
should be availed of at the first opportunity by offenders who are willing to be reformed and rehabilitated."

The ruling of the RTC that "[h]aving not perfected an appeal against the Court of Appeals decision, [private
respondent] is, therefore, not covered by [the amendment in] P.D. 1990" is an obvious misreading of the
law. The perfection of the appeal referred in the law refers to the .appeal taken from a judgment of conviction
by the trial court and not that of the appellate court, since under the law an application for probation is filed
with the trial court which can only grant the same "after it shall have convicted and sentenced [the]
defendant, and upon application by said defendant within the period for perfecting an appeal. "Accordingly,
in Llamado v. Court of Appeals, 10 it was held that the petitioner who had appealed his sentence could not
subsequently apply for probation.

WHEREFORE, the petition is GRANTED and the order of April 23, 1993 of the Regional Trial Court of
Misamis Oriental (Branch 21) granting probation to private respondent Grildo S. Tugonon is SET ASIDE.

SO ORDERED.

Regalado, Romero and Puno, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 87416 April 8, 1991

CECILIO S. DE VILLA, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, PEOPLE OF THE PHILIPPINES, HONORABLE JOB B.
MADAYAG, and ROBERTO Z. LORAYES, respondents.

San Jose Enriquez, Lacas Santos & Borje for petitioner.

Eduardo R. Robles for private respondent.

PARAS, J.:

This petition for review on certiorari seeks to reverse and set aside the decision* of the Court of Appeals
promulgated on February 1, 1989 in CA-G.R. SP No. 16071 entitled "Cecilio S. de Villa vs. Judge Job B.
Madayag, etc. and Roberto Z. Lorayes," dismissing the petition for certiorari filed therein.

The factual backdrop of this case, as found by the Court of Appeals, is as follows:

On October 5, 1987, petitioner Cecilio S. de Villa was charged before the Regional Trial Court of the
National Capital Judicial Region (Makati, Branch 145) with violation of Batas Pambansa Bilang 22, allegedly
committed as follows:

That on or about the 3rd day of April 1987, in the municipality of Makati, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there
willfully, unlawfully and feloniously make or draw and issue to ROBERTO Z. LORAYEZ, to apply
on account or for value a Depositors Trust Company Check No. 3371 antedated March 31, 1987,
payable to herein complainant in the total amount of U.S. $2,500.00 equivalent to P50,000.00, said
accused well knowing that at the time of issue he had no sufficient funds in or credit with drawee
bank for payment of such check in full upon its presentment which check when presented to the
drawee bank within ninety (90) days from the date thereof was subsequently dishonored for the
reason "INSUFFICIENT FUNDS" and despite receipt of notice of such dishonor said accused failed
to pay said ROBERTO Z. LORAYEZ the amount of P50,000.00 of said check or to make
arrangement for full payment of the same within five (5) banking days after receiving said notice.

After arraignment and after private respondent had testified on direct examination, petitioner moved to
dismiss the Information on the following grounds: (a) Respondent court has no jurisdiction over the offense
charged; and (b) That no offense was committed since the check involved was payable in dollars, hence,
the obligation created is null and void pursuant to Republic Act No. 529 (An Act to Assure Uniform Value
of Philippine Coin and Currency).

On July 19, 1988, respondent court issued its first questioned orders stating:

Accused's motion to dismiss dated July 5, 1988, is denied for lack of merit.

Under the Bouncing Checks Law (B.P. Blg. 22), foreign checks, provided they are either drawn and issued
in the Philippines though payable outside thereof, or made payable and dishonored in the Philippines
though drawn and issued outside thereof, are within the coverage of said law. The law likewise applied to
checks drawn against current accounts in foreign currency.
Petitioner moved for reconsideration but his motion was subsequently denied by respondent court in its
order dated September 6, 1988, and which reads:

Accused's motion for reconsideration, dated August 9, 1988, which was opposed by the
prosecution, is denied for lack of merit.1âwphi1

The Bouncing Checks Law is applicable to checks drawn against current accounts in foreign currency
(Proceedings of the Batasang Pambansa, February 7, 1979, p. 1376, cited in Makati RTC Judge (now
Manila City Fiscal) Jesus F. Guerrero's The Ramifications of the Law on Bouncing Checks, p. 5). (Rollo,
Annex "A", Decision, pp. 20-22).

A petition for certiorari seeking to declare the nullity of the aforequoted orders dated July 19, 1988 and
September 6, 1988 was filed by the petitioner in the Court of Appeals wherein he contended:

(a) That since the questioned check was drawn against the dollar account of petitioner with a foreign
bank, respondent court has no jurisdiction over the same or with accounts outside the territorial
jurisdiction of the Philippines and that Batas Pambansa Bilang 22 could have not contemplated
extending its coverage over dollar accounts;

(b) That assuming that the subject check was issued in connection with a private transaction between
petitioner and private respondent, the payment could not be legally paid in dollars as it would violate
Republic Act No. 529; and

(c) That the obligation arising from the issuance of the questioned check is null and void and is not
enforceable with the Philippines either in a civil or criminal suit. Upon such premises, petitioner concludes
that the dishonor of the questioned check cannot be said to have violated the provisions of Batas Pambansa
Bilang 22. (Rollo, Annex "A", Decision, p. 22).

On February 1, 1989, the Court of Appeals rendered a decision, the decretal portion of which reads:

WHEREFORE, the petition is hereby dismissed. Costs against petitioner.

SO ORDERED. (Rollo, Annex "A", Decision, p. 5)

A motion for reconsideration of the said decision was filed by the petitioner on February 7, 1989 (Rollo,
Petition, p. 6) but the same was denied by the Court of Appeals in its resolution dated March 3, 1989 (Rollo,
Annex "B", p. 26).

Hence, this petition.

In its resolution dated November 13, 1989, the Second Division of this Court gave due course to the petition
and required the parties to submit simultaneously their respective memoranda (Rollo, Resolution, p. 81).

The sole issue in this case is whether or not the Regional Trial Court of Makati has jurisdiction over the
case in question.

The petition is without merit.

Jurisdiction is the power with which courts are invested for administering justice, that is, for hearing and
deciding cases (Velunta vs. Philippine Constabulary, 157 SCRA 147 [1988]).

Jurisdiction in general, is either over the nature of the action, over the subject matter, over the person of
the defendant, or over the issues framed in the pleadings (Balais vs. Balais, 159 SCRA 37 [1988]).

Jurisdiction over the subject matter is determined by the statute in force at the time of commencement of
the action (De la Cruz vs. Moya, 160 SCRA 538 [1988]).

The trial court's jurisdiction over the case, subject of this review, can not be questioned.
Sections 10 and 15(a), Rule 110 of the Rules of Court specifically provide that:

Sec. 10. Place of the commission of the offense. The complaint or information is sufficient if it can
be understood therefrom that the offense was committed or some of the essential ingredients
thereof occured at some place within the jurisdiction of the court, unless the particular place wherein
it was committed constitutes an essential element of the offense or is necessary for identifying the
offense charged.

Sec. 15. Place where action is to be instituted. (a) Subject to existing laws, in all criminal prosecutions the
action shall be instituted and tried in the court of the municipality or territory where the offense was
committed or any of the essential ingredients thereof took place.

In the case of People vs. Hon. Manzanilla (156 SCRA 279 [1987] cited in the case of Lim vs. Rodrigo, 167
SCRA 487 [1988]), the Supreme Court ruled "that jurisdiction or venue is determined by the allegations in
the information."

The information under consideration specifically alleged that the offense was committed in Makati, Metro
Manila and therefore, the same is controlling and sufficient to vest jurisdiction upon the Regional Trial Court
of Makati. The Court acquires jurisdiction over the case and over the person of the accused upon the filing
of a complaint or information in court which initiates a criminal action (Republic vs. Sunga, 162 SCRA 191
[1988]).

Moreover, it has been held in the case of Que v. People of the Philippines (154 SCRA 160 [1987] cited in
the case of People vs. Grospe, 157 SCRA 154 [1988]) that "the determinative factor (in determining venue)
is the place of the issuance of the check."

On the matter of venue for violation of Batas Pambansa Bilang 22, the Ministry of Justice, citing the case
of People vs. Yabut (76 SCRA 624 [1977], laid down the following guidelines in Memorandum Circular No.
4 dated December 15, 1981, the pertinent portion of which reads:

(1) Venue of the offense lies at the place where the check was executed and delivered; (2) the
place where the check was written, signed or dated does not necessarily fix the place where it was
executed, as what is of decisive importance is the delivery thereof which is the final act essential
to its consummation as an obligation; . . . (Res. No. 377, s. 1980, Filtex Mfg. Corp. vs. Manuel
Chua, October 28, 1980)." (See The Law on Bouncing Checks Analyzed by Judge Jesus F.
Guerrero, Philippine Law Gazette, Vol. 7. Nos. 11 & 12, October-December, 1983, p. 14).

It is undisputed that the check in question was executed and delivered by the petitioner to herein private
respondent at Makati, Metro Manila.

However, petitioner argues that the check in question was drawn against the dollar account of petitioner
with a foreign bank, and is therefore, not covered by the Bouncing Checks Law (B.P. Blg. 22).

But it will be noted that the law does not distinguish the currency involved in the case. As the trial court
correctly ruled in its order dated July 5, 1988:

Under the Bouncing Checks Law (B.P. Blg. 22), foreign checks, provided they are either drawn and
issued in the Philippines though payable outside thereof . . . are within the coverage of said law.

It is a cardinal principle in statutory construction that where the law does not distinguish courts should not
distinguish.1âwphi1 Parenthetically, the rule is that where the law does not make any exception, courts
may not except something unless compelling reasons exist to justify it (Phil. British Assurance Co., Inc. vs.
IAC, 150 SCRA 520 [1987]).

More importantly, it is well established that courts may avail themselves of the actual proceedings of the
legislative body to assist in determining the construction of a statute of doubtful meaning (Palanca vs. City
of Manila, 41 Phil. 125 [1920]). Thus, where there is doubts as to what a provision of a statute means, the
meaning put to the provision during the legislative deliberation or discussion on the bill may be adopted
(Arenas vs. City of San Carlos, 82 SCRA 318 [1978]).

The records of the Batasan, Vol. III, unmistakably show that the intention of the lawmakers is to apply the
law to whatever currency may be the subject thereof. The discussion on the floor of the then Batasang
Pambansa fully sustains this view, as follows:

xxx xxx xxx

THE SPEAKER. The Gentleman from Basilan is recognized.

MR. TUPAY. Parliamentary inquiry, Mr. Speaker.

THE SPEAKER. The Gentleman may proceed.

MR. TUPAY. Mr. Speaker, it has been mentioned by one of the Gentlemen who interpellated that any check
may be involved, like U.S. dollar checks, etc. We are talking about checks in our country. There are U.S.
dollar checks, checks, in our currency, and many others.

THE SPEAKER. The Sponsor may answer that inquiry.

MR. MENDOZA. The bill refers to any check, Mr. Speaker, and this check may be a check in whatever
currency. This would not even be limited to U.S. dollar checks. The check may be in French francs or
Japanese yen or deutschunorhs. (sic.) If drawn, then this bill will apply.

MR TUPAY. So it include U.S. dollar checks.

MR. MENDOZA. Yes, Mr. Speaker.

xxx xxx xxx

(p. 1376, Records of the Batasan, Volume III; Emphasis supplied).

PREMISES CONSIDERED, the petition is DISMISSED for lack of merit.

Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-14787 January 28, 1961

COLGATE-PALMOLIVE PHILIPPINE, INC., petitioner,

vs.
HON. PEDRO M. GIMENEZ as Auditor General and ISMAEL MATHAY as AUDITOR OF THE CENTRAL
BANK OF THE PHILIPPINES, respondents.

Ross, Selph and Carrascoso for petitioner.

Office of the Solicitor General for respondents.

GUTIERREZ DAVID, J.:

The petitioner Colgate-Palmolive Philippines, Inc. is a corporation duly organized and existing under
Philippine laws engaged in the manufacture of toilet preparations and household remedies. On several
occasions, it imported from abroad various materials such as irish moss extract, sodium benzoate, sodium
saccharinate precipitated calcium carbonate and dicalcium phosphate, for use as stabilizers and flavoring
of the dental cream it manufactures. For every importation made of these materials, the petitioner paid to
the Central Bank of the Philippines the 17% special excise tax on the foreign exchange used for the
payment of the cost, transportation and other charges incident thereto, pursuant to Republic Act No. 601,
as amended, commonly known as the Exchange Tax Law.

On March 14, 1956, the petitioner filed with the Central Bank three applications for refund of the 17% special
excise tax it had paid in the aggregate sum of P113,343.99. The claim for refund was based on section 2
of Republic Act 601, which provides that "foreign exchange used for the payment of the cost, transportation
and/or other charges incident to the importation into the Philippines of . . . stabilizer and flavors . . . shall be
refunded to any importer making application therefor, upon satisfactory proof of actual importation under
the rules and regulations to be promulgated pursuant to section seven thereof." After the applications were
processed by the officer-in-charge of the Exchange Tax Administration of the Central Bank, that official
advised, the petitioner that of the total sum of P113,343.99 claimed by it for refund, the amount of
P23,958.13 representing the 17% special excise tax on the foreign exchange used to import irish moss
extract, sodium benzoate and precipitated calcium carbonate had been approved. The auditor of the Central
Bank, however, refused to pass in audit its claims for refund even for the reduced amount fixed by the
Officer-in-Charge of the Exchange Tax Administration, on the theory that toothpaste stabilizers and flavors
are not exempt under section 2 of the Exchange Tax Law.

Petitioner appealed to the Auditor General, but the latter or, December 4, 1958 affirmed the ruling of the
auditor of the Central Bank, maintaining that the term "stabilizer and flavors" mentioned in section 2 of the
Exchange Tax Law refers only to those used in the preparation or manufacture of food or food products.
Not satisfied, the petitioner brought the case to this Court thru the present petition for review.

The decisive issue to be resolved is whether or not the foreign exchange used by petitioner for the
importation of dental cream stabilizers and flavors is exempt from the 17% special excise tax imposed by
the Exchange Tax Law, (Republic Act No. 601) so as to entitle it to refund under section 2 thereof, which
reads as follows:

SEC, 2. The tax collected under the preceding section on foreign exchange used for the payment of the
cost, transportation and/or other charges incident to importation into the Philippines of rice, flour, canned
milk, cattle and beef, canned fish, soya beans, butterfat, chocolate, malt syrup, tapioca, stabilizer and
flavors, vitamin concentrate, fertilizer, poultry feed; textbooks, reference books, and supplementary readers
approved by the Board of Textbooks and/or established public or private educational institutions; newsprint
imported by or for publishers for use in the publication of books, pamphlets, magazines and newspapers;
book paper, book cloth, chip board imported for the printing of supplementary readers (approved by the
Board of Textbooks) to be supplied to the Government under contracts perfected before the approval of
this Act, the quantity thereof to be certified by the Director of Printing; anesthetics, anti-biotics, vitamins,
hormones, x-ray films, laboratory reagents, biologicals, dental supplies, and pharmaceutical drugs
necessary for compounding medicines; medical and hospital supplies listed in the appendix to this Act, in
quantities to be certified by the Director of Hospitals as actually needed by the hospitals applying therefor;
drugs and medicines listed in the said appendix; and such other drugs and medicines as may be certified
by the Secretary of Health from time to time to promote and protect the health of the people of the
Philippines shall be refunded to any importer making application therefor, upon satisfactory proof of actual
importation under the rules and regulations to be promulgated pursuant to section seven thereof."
(Emphasis supplied.)

The ruling of the Auditor General that the term "stabilizer and flavors" as used in the law refers only to those
materials actually used in the preparation or manufacture of food and food products is based, apparently,
on the principle of statutory construction that "general terms may be restricted by specific words, with the
result that the general language will be limited by the specific language which indicates the statute's object
and purpose." (Statutory Construction by Crawford, 1940 ed. p. 324-325.) The rule, however, is, in our
opinion, applicable only to cases where, except for one general term, all the items in an enumeration belong
to or fall under one specific class. In the case at bar, it is true that the term "stabilizer and flavors" is preceded
by a number of articles that may be classified as food or food products, but it is likewise true that the other
items immediately following it do not belong to the same classification. Thus "fertilizer" and "poultry feed"
do not fall under the category of food or food products because they are used in the farming and poultry
industries, respectively. "Vitamin concentrate" appears to be more of a medicine than food or food product,
for, as matter of fact, vitamins are among those enumerated in the list of medicines and drugs appearing in
the appendix to the law. It should also here be stated that "cattle", which is among those listed preceding
the term in question, includes not only those intended for slaughter but also those for breeding purposes.
Again, it is noteworthy that under, Republic Act No. 814 amending the above-quoted section of Republic
Act No. 601, "industrial starch", which does not always refer to food for human consumption, was added
among the items grouped with "stabilizer and flavors". Thus, on the basis of the grouping of the articles
alone, it cannot validly be maintained that the term "stabilizer and flavors" as used in the above-quoted
provision of the Exchange Tax Law refers only to those used in the manufacture of food and food products.
This view is supported by the principle "Ubi lex non distinguish nec nos distinguire debemos", or "where the
law does not distinguish, neither do we distinguish". (Ligget & Myers Tobacco Company vs. Collector of
Internal Revenue, 53 Off. Gaz. No. 15, page 4831). Since the law does not distinguish between "stabilizer
and flavors" used in the preparation of food and those used in the manufacture of toothpaste or dental
cream, we are not authorized to make any distinction and must construe the words in their general sense.
The rule of construction that general and unlimited terms are restrained and limited by particular recitals
when used in connection with them, does not require the rejection of general terms entirely. It is intended
merely as an aid in ascertaining the intention of the legislature and is to be taken in connection with other
rules of construction. (See Handbook of the Construction and Interpretation of Laws by Black, p. 215.216,
2nd ed.)

Having arrived at the above conclusion, we deem it now idle to pass upon the other questions raised by the
parties.

WHEREFORE, the decision under review is reversed and the respondents are hereby ordered to audit
petitioners applications for refund which were approved by the Officer-in-Charge of the Exchange Tax
Administration in the total amount of P23,958.13.

Bengzon, Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur.
Labrador, J., reserves his vote.
 EN BANC

[G.R. No. 89483. August 30, 1990.]

REPUBLIC OF THE PHILIPPINES THRU: THE PRESIDENTIAL COMMISSION ON GOOD

GOVERNMENT (PCGG), AFP ANTI-GRAFT BOARD, COL. ERNESTO A. PUNSALANG and PETER T.
TABANG, Petitioners, v. HON. EUTROPIO MIGRINO, as Presiding Judge, Regional Trial Court, NCJR,
Branch 151, Pasig, Metro Manila and TROADIO TECSON, Respondents.

The Solicitor General, for Petitioners.

Pacifico B. Advincula for Private Respondent.

DECISION

CORTES, J.:

This case puts in issue the authority of the Presidential Commission on Good Government (PCGG),
through the New Armed Forces of the Philippines Anti-Graft Board (hereinafter referred to as the
"Board"), to investigate and cause the prosecution of petitioner, a retired military officer, for violation of
Republic Acts Nos. 3019 and 1379.

Assailed by the Republic in this petition for certiorari, prohibition and/or mandamus with prayer for the
issuance of a writ of preliminary injunction and/or temporary restraining order are the orders of
respondent judge in Civil Case No. 57092 Branch 151 of the Regional Trial Court of Pasig, Metro Manila:
(1) dated June 23, 1989, denying petitioners’ Motion to Dismiss and Opposition, and (2) dated June 26,
1989, granting private respondent’s application for the issuance of a writ of preliminary injunction. Thus,
the petition seeks the annulment of the two orders, the issuance of an injunction to enjoin respondent
judge from proceeding with Civil Case No. 57092 and, finally, the dismissal of the case before the trial
court.

The controversy traces its roots to the order of then PCGG Chairman Jovito R. Salonga, dated May 13,
1986, which created the New Armed Forces of the Philippines Anti-Graft Board. The Board was created
to "investigate the unexplained wealth and corrupt practices of AFP personnel, both retired and in active
service." The order further stated that" [t]he Board shall be primarily charged with the task of investigating
cases of alleged violations of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019, as
amended) and shall make the necessary recommendations to appropriate government agencies and
instrumentalities with respect to the action to be taken thereon based on its findings."cralaw virtua1aw
library
Acting on information received by the Board, which indicated the acquisition of wealth beyond his lawful
income, private respondent Lt. Col. Troadio Tecson (ret.) was required by the Board to submit his
explanation/comment together with his supporting evidence by October 31, 1987 [Annex "B", Petition].
Private respondent requested, and was granted, several postponements, but was unable to produce his
supporting evidence because they were allegedly in the custody of his bookkeeper who had gone abroad.

Just the same, the Board proceeded with its investigation and submitted its resolution, dated June 30,
1988, recommending that private respondent be prosecuted and tried for violation of Rep. Act No. 3019,
as amended, and Rep. Act No. 1379, as amended.chanrobles lawlibrary : rednad

The case was set for preliminary investigation by the PCGG. Private respondent moved to dismiss the
case on the following grounds: (1) that the PCGG has no jurisdiction over his person; (2) that the action
against him under Rep. Act No. 1379 has already prescribed; (3) that E.O. No. 14, insofar as it
suspended the provisions of Rep. Act No. 1379 on prescription of actions, was inapplicable to his case;
and (4) that having retired from the AFP on May 9, 1984, he was now beyond the reach of Rep. Act No.
3019. The Board opposed the motion to dismiss.

In a resolution dated February 8, 1989, the PCGG denied the motion to dismiss for lack of merit. Private
respondent moved for reconsideration but this was denied by the PCGG in a resolution dated March 8,
1989. Private respondent was directed to submit his counter-affidavit and other controverting evidence on
March 20, 1989 at 2:00 p.m.

On March 13, 1989, private respondent filed a petition for prohibition with preliminary injunction with the
Regional Trial Court in Pasig, Metro Manila. The case was docketed as Case No. 57092 and raffled to
Branch 151, respondent judge’s court. Petitioner filed a motion to dismiss and opposed the application for
the issuance of a writ of preliminary injunction on the principal ground that the Regional Trial Court had no
jurisdiction over the Board, citing the case of PCGG v. Peña, G.R. No. 77663, April 12, 1988, 159 SCRA
556. Private respondent opposed the motion to dismiss. Petitioner replied to the opposition.

On June 23, 1989, respondent judge denied petitioner’s motion to dismiss. On June 26, 1989, respondent
judge granted the application for the issuance of a writ of preliminary injunction, enjoining petitioners from
investigating or prosecuting private respondent under Rep. Acts Nos. 3019 and 1379 upon the filing of a
bond in the amount of Twenty Thousand Pesos (P20,000.00).

Hence, the instant petition.

On August 29, 1989, the Court issued a restraining order enjoining respondent judge from enforcing his
orders dated June 23, 1989 and June 26, 1989 and from proceeding with Civil Case No. 57092.

Private respondent filed his comment, to which petitioners filed a reply. A rejoinder to the reply was filed
by private Respondent. The Court gave due course to the petition and the parties filed their memoranda.
Thereafter, the case was deemed submitted.

The issues raised in the petition are as follows:chanrob1es virtual 1aw library

I.

WHETHER OR NOT RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION OR ACTED

WITHOUT OR IN EXCESS OF JURISDICTION IN ASSUMING JURISDICTION OVER AND
INTERFERING WITH THE ORDERS AND FUNCTIONS OF THE PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT.

II.

WHETHER, OR NOT RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION OR ACTED

WITHOUT OR IN EXCESS OF JURISDICTION IN ISSUING THE ASSAILED ORDER DATED JUNE 26,
1989 ENJOINING PETITIONERS FROM INVESTIGATING AND PROSECUTING PRIVATE
RESPONDENT FOR VIOLATION OF REPUBLIC ACT NO. 3019, OTHERWISE KNOWN AS ANTI-
GRAFT AND CORRUPT PRACTICES ACT AND REPUBLIC ACT NO. 1379, OTHERWISE KNOWN AS
AN ACT FOR THE FORFEITURE OF UNLAWFULLY ACQUIRED PROPERTY [Rollo, p. 19].

As to the first issue, petitioner contends that following the ruling of the Court in PCGG v. Peña the Board,
being a creation and/or extension of the PCGG, is beyond the jurisdiction of the Regional Trial Court. On
the second issue, petitioner strongly argues that the private respondent’s case falls within the jurisdiction
of the PCGG.

The pivotal issue is the second one. On this point, private respondent’s position is as follows:chanrob1es
virtual 1aw library

1. . . . he is not one of the subordinates contemplated in Executive Orders 1 , 2 , 14 and 14-A as the
alleged illegal acts being imputed to him, that of alleged amassing wealth beyond his legal means while
Finance Officer of the Philippine Constabulary, are acts of his own alone, not connected with his being a
crony, business associate, etc. or subordinate as the petition does not allege so. Hence the PCGG has
no jurisdiction to investigate him.

If indeed private respondent amassed wealth beyond his legal means, the procedure laid down by Rep.
Act 1379 as already pointed out before be applied. And since, he has been separated from the
government more than four years ago, the action against him under Republic Act 1379 has already
prescribed.

2. . . . no action can be filed anymore against him now under Republic Act 1379 for recovery of
unexplained wealth for the reason that he has retired more than four years ago.

3. . . . The order creating the AFP Anti-Graft Board (Annex "A", Petition) is null and void. Nowhere in
Executive Orders 1, 2, 14 and 14-A is there any authority given to the commission, its chairman and
members, to create Boards or bodies to be invested with powers similar to the powers invested with the
commission .. [Comment, pp. 6-7; Rollo, pp. 117-118].

1. The most important question to be resolved in this case is whether or not private respondent may be
investigated and caused to be prosecuted by the Board, an agency of the PCGG, for violation of Rep.
Acts Nos. 3019 and 1379. According to petitioners, the PCGG has the power to investigate and cause the
prosecution of private respondent because he is a "subordinate" of former President Marcos. They cite
the PCGG’s jurisdiction over —

(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his
immediate family, relatives, subordinates and close associates, whether located in the Philippines or
abroad, including the takeover or sequestration of all business enterprises and entities owned or
controlled by them, during his administration, directly or through nominees, by taking undue advantage of
their public office and/or using their powers, authority, influence, connections or relationship. [E.O. No. 1,
sec. 2.].

Undoubtedly, the alleged unlawful accumulation of wealth was done during the administration of Pres.
Marcos. However, what has to be inquired into is whether or not private respondent acted as a
"subordinate" of Pres. Marcos within the contemplation of E.O. No. 1, the law creating the PCGG, when
he allegedly unlawfully acquired the properties.

A close reading of E. O. No. 1 and related executive orders will readily show what is contemplated within
the term "subordinate."cralaw virtua1aw library

The Whereas Clauses of E. O. No. 1 express the urgent need to recover the ill-gotten wealth amassed by
former President Ferdinand E. Marcos, his immediate family, relatives, and close associates both here
and abroad.

E.O. No. 2 freezes "all assets and properties in the Philippines in which former President Marcos and/or
his wife, Mrs. Imelda Romualdez Marcos, their close relatives, subordinates, business associates,
dummies, agents, or nominees have any interest or participation."cralaw virtua1aw library

Applying the rule in statutory construction known as ejusdem generis, that is —

[W]here general words follow an enumeration of persons or things, by words of a particular and specific
meaning, such general words are not to be construed in their widest extent, but are to be held as applying
only to persons or things of the same kind or class as those specifically mentioned [Smith, Bell & Co., Ltd.
v. Register of Deeds of Davao, 96 Phil. 53, 58 (1954), citing Black on Interpretation of Laws, 2nd Ed.,
203].

the term "subordinate" as used in E.O. Nos. 1 and 2 would refer to one who enjoys a close association or
relation with former Pres. Marcos and/or his wife, similar to the immediate family member, relative, and
close associate in E.O. No. 1 and the close relative, business associate, dummy, agent, or nominee in
E.O. No. 2.

Thus, as stated by the Court in Bataan Shipyard & Engineering Co., Inc. v. PCGG, G.R. No. 75885, May
27, 1987, 150 SCRA 181, 205-206.

The situations envisaged and sought to be governed [by Proclamation No. 3 and E.O. Nos. 1, 2 and 14]
are self-evident, these being:chanrob1es virtual 1aw library

1) that" (i)ll gotten properties (were) amassed by the leaders and supporters of the previous regime" ;

a) more particularly, that" (i)ll-gotten wealth (was) accumulated by former President Ferdinand E. Marcos,
his immediate family, relatives, subordinates, and close associates, . . . located in the Philippines or
abroad, xx (and) business enterprises and entities (came to be) owned or controlled by them, during . . .
(the Marcos) administration, directly or through nominees, by taking undue advantage of their public office
and/or using their powers, authority, influence, connections or relationship;"

b) otherwise stated, that "there are assets and properties pertaining to former President Ferdinand E.
Marcos, and/or his wife Mrs. Imelda Romualdez Marcos, their close relatives, subordinates, business
associates, dummies, agents or nominees which had been or were acquired by them directly or indirectly,
through or as a result of the improper or illegal use of funds or properties owned by the Government of
the Philippines or any of its branches, instrumentalities, enterprises, banks or financial institutions, or by
taking undue advantage of their office, authority, influence, connections or relationship, resulting in their
unjust enrichment and causing grave damage and prejudice to the Filipino people and the Republic of the
Philippines" ;

c) that "said assets and properties are in the form of bank accounts, deposits, trust accounts, shares of
stocks, buildings, shopping centers, condominiums, mansions, residences, estates, and other kinds of
real and personal properties in the Philippines and in various countries of the world;" and.

2) that certain "business enterprises and properties (were) taken over by the government of the Marcos
Administration or by entities or persons close to former President Marcos." [Footnotes deleted].

It does not suffice, as in this case, that the respondent is or was a government official or employee during
the administration of former Pres. Marcos. There must be a prima facie showing that the respondent
unlawfully accumulated wealth by virtue of his close association or relation with former Pres. Marcos
and/or his wife. This is so because otherwise the respondent’s case will fall under existing general laws
and procedures on the matter. Rep. Act No. 3019, the Anti-Graft and Corrupt Practices Act, penalizes the
corrupt practices of any public officer. Under Rep. Act No. 1379 (An Act Declaring Forfeited in Favor of
the State Any Property Found to Have Been Unlawfully Acquired By Any Public Officer or Employee and
Providing for the Procedure Therefor), whenever any public officer or employee has acquired during his
incumbency an amount of property which is manifestly out of proportion to his salary as such public
officer or employee and to his other lawful income and the income from legitimately acquired property,
said property shall be presumed prima facie to have been unlawfully acquired [Sec. 2]. The Solicitor
General shall file the petition and prosecute the case in behalf of the Republic, after preliminary
investigation by the provincial or city prosecutor [Ibid].

Moreover, the record shows that private respondent was being investigated for unlawfully acquired wealth
under Rep. Acts Nos. 3019 and 1379, and not under E.O. Nos. 1, 2, 14 and 14-A.

Since private respondent was being investigated by the PCGG through the AFP Anti-Graft Board it would
have been presumed that this was under Rep. Acts Nos. 3019 and 1379 in relation to E.O. Nos. 1, 2, 14
and 14-A. But the record itself belies this presumption:chanrob1es virtual 1aw library

(a) The letter of the chairman of the AFP Anti-Graft Board to private respondent, dated October 16, 1987,
states: "This letter is in connection with the alleged information received by the AFP Anti-Graft Board
indicating your acquisition of wealth beyond legal means of income in violation of Rep. Act No. 3019
known as the Anti-Graft and Corrupt Practices Act." [Rollo, p. 39].

(b) The Resolution dated June 30, 1988 of the Board categorically states:chanrob1es virtual 1aw library

I. PRELIMINARY STATEMENT:chanrob1es virtual 1aw library

This refers to the case against Col Troadio B. Tecson PC (Ret) for alleged unexplained wealth pursuant
to R.A. 3019, as amended, otherwise known as Anti-Graft and Corrupt Practices Act and R.A. 1379, as
amended, otherwise known as the "Act for Forfeiture of Unlawfully Acquired Property." [Rollo, p. 43].

The resolution alleges that private respondent unlawfully accumulated wealth by taking advantage of his
office as Finance Officer of the Philippine Constabulary. No attempt is made in the Board’s resolution to
link him or his accumulation of wealth to former Pres. Marcos and/or his wife.

(c) The letter of the Board chairman to the chairman of the PCGG, dated July 28, 1988, is
clear:chanrob1es virtual 1aw library

Respectfully transmitted herewith for the prosecution before the Sandiganbayan is the case folder of
COLONEL TROADIO TECSON (Ret) who after preliminary investigation of the case by the Board, found
a prima facie evidence against subject officer for violating Section 8, R.A. 3019, as amended by BP 195,
otherwise known as the Anti-Graft and Corrupt Practices Act and R.A. 1379, otherwise known as an Act
for the Forfeiture of Unlawfully Acquired Property." [Rollo, p. 46].

Moreover, from the allegations of petitioner in its memorandum, it would appear that private respondent
accumulated his wealth for his own account. Petitioner quoted the letter of Ignacio Datahan, a retired PC
sergeant, to General Fidel Ramos, the material portion of which reads:chanrob1es virtual 1aw library

. . . After an official in the military unit received an Allotment Advice the same signed a cash advance
voucher, let us say in the amount of P5,000.00. Without much ado, outright, Col. Tecson paid the amount.
The official concerned was also made to sign the receipt portion on the voucher the amount of which was
left blank. Before the voucher is passed for routine processing by Mrs. Leonor Cagas, clerk of Col.
Tecson and its facilitator, the maneuver began. The amount on the face of the cash advance voucher is
altered or superimposed. The original amount of P5,000.00 was now made say, P95,000.00. So it was
actually the amount of P95,000.00 that appeared on the records. The difference of P90,000.00 went to
the syndicate.

. . . Boy Tanyag, bookkeeper in Col. Tecson’s office took care of the work.

. . . In the liquidation of the altered cash advance amount, names of persons found in the Metropolitan
Manila Telephone Directory with fictitious addresses appeared as recipients or payees. Leonor and Boy
got their shares on commission basis of the looted amount while the greater part went to Col. Tecson.
[Rollo, pp. 184-185.].

Clearly, this alleged unlawful accumulation of wealth is not that contemplated in E.O. Nos. 1, 2, 14 and
14-A.

2. It will not do to cite the order of the PCGG Chairman, dated May 13, 1986, creating the Board and
authorizing it to investigate the unexplained wealth and corrupt practices of AFP personnel, both retired
and in active service, to support the contention that PCGG has jurisdiction over the case of private
Respondent. The PCGG cannot do more than what it was empowered to do. Its powers are limited. Its
task is limited to the recovery of the ill-gotten wealth of the Marcoses, their relatives and cronies. The
PCGG cannot, through an order of its chairman, grant itself additional powers — powers not
contemplated in its enabling law.

3. Petitioner assails the trial court’s cognizance of the petition filed by private Respondent. Particularly,
petitioner argues that the trial court cannot acquire jurisdiction over the PCGG. This matter has already
been settled in Peña, supra, where the Court ruled that those who wish to question or challenge the
PCGG’s acts or orders must seek recourse in the Sandiganbayan, which is vested with exclusive and
original jurisdiction. The Sandiganbayan’s decisions and final orders are in turn subject to review on
certiorari exclusively by this Court. [Ibid, at pp. 564-565].

The ruling in Peña was applied in PCGG v. Aquino, G.R. No. 77816, June 30, 1988, 163 SCRA 363,
Soriano III v. Yuson, G.R. No. 74910 (and five other cases), August 10, 1988, 164 SCRA 226 and
Olaguer v. RTC, NCJR, Br. 48, G.R. No. 81385, February 21, 1989, 170 SCRA 478, among others, to
enjoin the regional trial courts from interfering with the actions of the PCGG.

Respondent judge clearly acted without or in excess of his jurisdiction when he took cognizance of Civil
Case No. 57092 and issued the writ of preliminary injunction against the PCGG.

4. Thus, we are confronted with a situation wherein the PCGG acted in excess of its jurisdiction and,
hence, may be enjoined from doing so, but the court that issued the injunction against the PCGG has not
been vested by law with jurisdiction over it and, thus, the injunction issued was null and void.

The nullification of the assailed order of respondent judge issuing the writ of preliminary injunction is
therefore in order. Likewise, respondent judge must be enjoined from proceeding with Civil Case No.
57092.

But in view of the patent lack of authority of the PCGG to investigate and cause the prosecution of private
respondent for violation of Rep. Acts Nos. 3019 and 1379, the PCGG must also be enjoined from
proceeding with the case, without prejudice to any action that may be taken by the proper prosecutory
agency. The rule of law mandates that an agency of government be allowed to exercise only the powers
granted it.

5. The pronouncements made above should not be taken to mean that the PCGG’s creation of the AFP
Anti-Graft Board is a nullity and that the PCGG has no authority to investigate and cause the prosecution
of members and former members of the Armed Forces of the Philippines for violations of Rep. Acts Nos.
3019 and 1379. The PCGG may investigate and cause the prosecution of active and retired members of
the AFP for violations of Rep. Acts Nos. 3019 and 1379 only in relation to E.O. Nos. 1, 2, 14 and 14-A,
i.e., insofar as they involve the recovery of the ill-gotten wealth of former Pres. Marcos and his family and
"cronies." But the PCGG would not have jurisdiction over an ordinary case falling under Rep. Acts Nos.
3019 and 1379, as in the case at bar. E.O. Nos. 1, 2, 14 and 14-A did not envision the PCGG as the
investigator and prosecutor of all unlawful accumulations of wealth. The PCGG was created for a specific
and limited purpose, as we have explained earlier, and necessarily its powers must be construed with this
in mind.

6. n his pleadings, private respondent contends that he may no longer be prosecuted because of
prescription. He relies on section 2 of Rep. Act No. 1379 which provides that" [t]he right to file such
petition [for forfeiture of unlawfully acquired wealth] shall prescribe within four years from the date of
resignation, dismissal or separation or expiration of the term of the officer or employee concerned." He
retired on May 9, 1984, or more than six (6) years ago. However, it must be pointed out that section 2 of
Rep. Act No. 1379 should be deemed amended or repealed by Article XI, section 15 of the 1987
Constitution which provides that" [t]he right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, laches, or estoppel." Considering that sec. 2 of Rep. Act No. 1379 was deemed amended or
repealed before the prescriptive period provided therein had lapsed insofar as private respondent is
concerned, we cannot say that he had already acquired a vested right that may not be prejudiced by a
subsequent enactment.

Moreover, to bar the Government from recovering ill-gotten wealth would result in the validation or
legitimization of the unlawful acquisition, a consequence at variance with the clear intent of Rep. Act No.
1379, which provides:chanrobles virtual lawlibrary

SEC. 11. Laws on prescription. — The laws concerning acquisitive prescription and limitation of actions
cannot be invoked by, nor shall they benefit the respondent, in respect to any property unlawfully
acquired by him.

Thus, we hold that the appropriate prosecutory agencies, i.e., the city or provincial prosecutor and the
Solicitor General under sec. 2 of Rep. Act No. 1379, may still investigate the case and file the petition for
the forfeiture of unlawfully acquired wealth against private respondent, now a private citizen. (On the
other hand, as regards respondents for violations of Rep. Acts Nos. 3019 and 1379 who are still in the
government service, the agency granted the power to investigate and prosecute them is the Office of the
Ombudsman [Rep. Act No. 6770]). Under Presidential Decree No. 1606, as amended, and Batas
Pambansa Blg. 195 violations of Rep. Acts Nos. 3019 and 1379 shall be tried by the Sandiganbayan.

7. The Court hastens to add that this decision is without prejudice to the prosecution of private
respondent under the pertinent provisions of the Revised Penal Code and other related penal laws.

WHEREFORE, the order of respondent judge dated June 26, 1989 in Civil Case No. 57092 is NULLIFIED
and SET ASIDE. Respondent judge is ORDERED to dismiss Civil Case No. 57092. The temporary
restraining order issued by the Court on August 29, 1989 is MADE PERMANENT. The PCGG is
ENJOINED from proceeding with the investigation and prosecution of private respondent in I.S. No. 37,
without prejudice to his investigation and prosecution by the appropriate prosecutory agency.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Griño-Aquino, Medialdea and Regalado, JJ., concur.

Sarmiento, J., on leave.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-47757-61 January 28, 1980

THE PEOPLE OF THE PHILIPPINES, ABUNDIO R. ELLO, As 4th Assistant of Provincial Bohol
VICENTE DE LA SERNA. JR., as complainant all private prosecutor, petitioners,
vs.
HON. VICENTE B. ECHAVES, JR., as Judge of the Court of First Instance of Bohol Branch II, ANO
DACULLO, GERONIMO OROYAN, MARIO APARICI, RUPERTO CAJES and MODESTO S SUELLO,
respondents.

AQUINO, J.:p

The legal issue in this case is whether Presidential Decree No. 772, which penalizes squatting and similar
acts, applies to agricultural lands. The decree (which took effect on August 20, 1975) provides:

SECTION 1. Any person who, with the use of force, intimidation or threat, or taking advantage of
the absence or tolerance of the landowner, succeeds in occupying or possessing the property of
the latter against his will for residential, commercial or any other purposes, shall be punished by an
imprisonment ranging from six months to one year or a fine of not less than one thousand nor more
than five thousand pesos at the discretion of the court, with subsidiary imprisonment in case of
insolvency. (2nd paragraph is omitted.)

The record shows that on October 25, 1977 Fiscal Abundio R. Ello filed with the lower court separate
informations against sixteen persons charging them with squatting as penalized by Presidential Decree No.
772. The information against Mario Aparici which is similar to the other fifteen informations, reads:

That sometime in the year 1974 continuously up to the present at barangay Magsaysay,
municipality of Talibon, province of Bohol, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with stealth and strategy, enter into, occupy and cultivate a
portion of a grazing land physically occupied, possessed and claimed by Atty. Vicente de la Serna,
Jr. as successor to the pasture applicant Celestino de la Serna of Pasture Lease Application No.
8919, accused's entrance into the area has been and is still against the win of the offended party;
did then and there willfully, unlawfully, and feloniously squat and cultivate a portion of the said
grazing land; said cultivating has rendered a nuisance to and has deprived the pasture applicant
from the full use thereof for which the land applied for has been intended, that is preventing
applicant's cattle from grazing the whole area, thereby causing damage and prejudice to the said
applicant-possessor-occupant, Atty. Vicente de la Serna, Jr. (sic)

Five of the informations, wherein Ano Dacullo, Geronimo Oroyan, Mario Aparici, Ruperto Cajes and
Modesto Suello were the accused, were raffled to Judge Vicente B. Echaves, Jr. of Branch II (Criminal
Cases Nos. 1824, 1828, 1832, 1833 and 1839, respectively).

Before the accused could be arraigned, Judge Echaves motu proprio issued an omnibus order dated
December 9, 1977 dismissing the five informations on the grounds (1) that it was alleged that the accused
entered the land through "stealth and strategy", whereas under the decree the entry should be effected
"with the use of force, intimidation or threat, or taking advantage of the absence or tolerance of the
landowner", and (2) that under the rule of ejusdem generis the decree does not apply to the cultivation of a
grazing land.
Because of that order, the fiscal amended the informations by using in lieu of "stealth and strategy" the
expression "with threat, and taking advantage of the absence of the ranchowner and/or tolerance of the
said ranchowner". The fiscal asked that the dismissal order be reconsidered and that the amended
informations be admitted.

The lower court denied the motion. It insisted that the phrase "and for other purposes" in the decree does
not include agricultural purposes because its preamble does not mention the Secretary of Agriculture and
makes reference to the affluent class.

From the order of dismissal, the fiscal appealed to this Court under Republic Act No. 5440. The appeal is
devoid of merit.

We hold that the lower court correctly ruled that the decree does not apply to pasture lands because its
preamble shows that it was intended to apply to squatting in urban communities or more particularly to
illegal constructions in squatter areas made by well-to-do individuals. The squating complained of involves
pasture lands in rural areas.

The preamble of the decree is quoted below:

WHEREAS, it came to my knowledge that despite the issuance of Letter of Instruction No. 19 dated
October 2, 1972, directing the Secretaries of National Defense, Public Work. 9 and
communications, Social Welfare and the Director of Public Works, the PHHC General Manager,
the Presidential Assistant on Housing and Rehabilitation Agency, Governors, City and Municipal
Mayors, and City and District Engineers, "to remove an illegal constructions including buildings on
and along esteros and river banks, those along railroad tracks and those built without permits on
public and private property." squatting is still a major problem in urban communities all over the
country;

WHEREAS, many persons or entities found to have been unlawfully occupying public and private lands
belong to the affluent class;

WHEREAS, there is a need to further intensify the government's drive against this illegal and nefarious
practice.

It should be stressed that Letter of Instruction No. 19 refers to illegal constructions on public and private
property. It is complemented by Letter of Instruction No. 19-A which provides for the relocation of squatters
in the interest of public health, safety and peace and order.

On the other hand, it should be noted that squatting on public agricultural lands, like the grazing lands
involved in this case, is punished by Republic Act No. 947 which makes it unlawful for any person,
corporation or association to forcibly enter or occupy public agricultural lands. That law provides:

SECTION 1. It shall be unlawful for any person corporation or association to enter or occupy,
through force, intimidation, threat, strategy or stealth, any public agriculture land including such
public lands as are granted to private individuals under the provision of the Public Land Act or any
other laws providing for the of public agriculture lands in the Philippines and are duly covered by
the corresponding applications for the notwithstanding standing the fact that title thereto still
remains in the Government or for any person, natural or judicial to investigate induce or force
another to commit such acts.

Violations of the law are punished by a fine of not exceeding one thousand or imprisonment for not more
than one year, or both such fine and imprisonment in the discretion of the court, with subsidiary
imprisonment in case of insolvency. (See People vs. Lapasaran 100 Phil. 40.)

The rule of ejusdem generis (of the same kind or species) invoked by the trial court does not apply to this
case. Here, the intent of the decree is unmistakable. It is intended to apply only to urban communities,
particularly to illegal constructions. The rule of ejusdem generis is merely a tool of statutory construction
which is resorted to when the legislative intent is uncertain (Genato Commercial Corp. vs. Court of Tax
Appeals, 104 Phil. 615,618; 28 C.J.S. 1049-50).

WHEREFORE, the trial court's order of dismissal is affirmed. No costs.

SO ORDERED.

Barredo, Antonio, Concepcion Jr. and Abad Santos, J., concur.

 FIRST DIVISION

January 20, 2016

G.R. No. 180235

ALTA VISTA GOLF AND COUNTRY CLUB, Petitioner,

vs.
THE CITY OF CEBU, HON. MAYOR TOMAS R. OSMEÑA, in his capacity as Mayor of Cebu, and
TERESITA C. CAMARILLO, in her capacity as the City Treasurer, Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

Before the Court is a Petition for Review on Certiorari of the Resolution1 dated March 14, 2007 and the
Order2 dated October 3, 2007 of the Regional Trial Court (RTC), Cebu City, Branch 9 in Civil Case No.
CEB-31988, dismissing the Petition for Injunction, Prohibition, Mandamus, Declaration of Nullity of Closure
Order, Declaration of Nullity of Assessment, and Declaration of Nullity of Section 42 of Cebu City Tax:
Ordinance, with Prayer for Temporary Restraining Order and Writ of Preliminary Injunction 3 filed by
petitioner Alta Vista Golf and Country Club against respondents City of Cebu (Cebu City), then Cebu City
Mayor Tomas R. Osmeña (Osmeña), and then Cebu City Treasurer Teresita Camarillo (Camarillo).

Petitioner is a non-stock and non-profit corporation operating a golf course in Cebu City.

On June 21, 1993, the Sangguniang Panlungsod of Cebu City enacted City Tax: Ordinance No. LXIX,
otherwise known as the "Revised Omnibus Tax: Ordinance of the City of Cebu" (Revised Omnibus Tax:
Ordinance). Section 42 of the said tax ordinance on amusement tax was amended by City Tax Ordinance
Nos. LXXXII4 and LXXXIV5 (which were enacted by the Sangguniang Panlungsod of Cebu City on
December 2, 1996 and April 20, 1998, respectively6) to read as follows:

Section 42. Rate of Tax. - There shall be paid to the Office of the City Treasurer by the proprietors, lessees
or operators of theaters, cinemas, concert halls, circuses and other similar places of entertainment, an
amusement tax at the rate of thirty percent (30%), golf courses and polo grounds at the rate of twenty
percent (20% ), of their gross receipts on entrance, playing green, and/or admission fees; PROVIDED,
HOWEVER, That in case of movie premieres or gala shows for the benefit of a charitable
institution/foundation or any government institution where higher admission fees are charged, the
aforementioned rate of thirty percent (30%) shall be levied against the gross receipts based on the regular
admission fees, subject to the approval of the Sangguniang Panlungsod; PROVIDED FURTHER, That in
case payment of the amusement tax is made promptly on or before the date hereinbelow prescribed, a
rebate of five percent (5%) on the aforementioned gross receipts shall be given to the proprietors, lessees
or operators of theaters; PROVIDED FURTHERMORE, that as an incentive to theater operators who own
the real property and/or building where the theater is located, an additional one percent (1 %) rebate shall
be given to said operator/real property owner concerned for as long as their theater/movie houses are then
(10) years old or older or the theater or movie house is located at the city's redevelopment area bounded
on the north by Gen. Maxilom Street up to the port area; on the south by V. Rama Avenue up to San Nicolas
area; and on the west by B. Rodriguez St. and General Maxilom Avenue; PROVIDED FINALLY, that the
proceeds of this additional one percent (1 %) rebate shall be used by the building/property owner-theater
operator to modernize their theater facilities. (Emphases supplied.)

In an Assessment Sheet7 dated August 6, 1998, prepared by Cebu City Assessor Sandra I. Po, petitioner
was originally assessed deficiency business taxes, fees, and other charges for the year 1998, in the total
amount of P3,820,095.68, which included amusement tax on its golf course amounting to P2,612,961.24
based on gross receipts of P13,064,806.20.8

Through the succeeding years, respondent Cebu City repeatedly attempted to collect from petitioner its
deficiency business taxes, fees, and charges for 1998, a substantial portion of which consisted of the
amusement tax on the golf course. Petitioner steadfastly refused to pay the amusement tax arguing that
the imposition of said tax by Section 42 of the Revised Omnibus Tax Ordinance, as amended, was irregular,
improper, and illegal. Petitioner reasoned that under the Local Government Code, amusement tax can only
be imposed on operators of theaters, cinemas, concert halls, or places where one seeks to entertain himself
by seeing or viewing a show or performance. Petitioner further cited the ruling in Philippine Basketball
Association (PBA) v. Court of Appeals9 that under Presidential Decree No. 231, otherwise known as the
Lo.cal Tax Code of 1973, the province could only impose amusement tax on admission from the proprietors,
lessees, or operators of theaters, cinematographs, concert halls, circuses, and other places of amusement,
but not professional basketball games. Professional basketball games did not fall under the same category
as theaters, cinematographs, concert halls, and circuses as the latter basically belong to artistic forms of
entertainment while the former catered to sports and gaming.

Through a letter dated October 11, 2005, respondent Camarillo sought to collect once more from petitioner
deficiency business taxes, fees, and charges for the year 1998, totaling P2,981,441.52, computed as
follows:

Restaurant - P4,021,830.65 P 40,950.00

Permit Fee 2,000.00
Liquor-Pl,940,283.80 20,160.00
Permit Fee 2,000.00
Commission/Other Income 14,950.00
P 1,262,764.28
Permit Fee 1,874.00
Retail Cigarettes - P42,076. 11 -
84.15
Permit
Non-Securing of Permit 979.33
Sub-Total P 82,997.98
Less: Payment based on
74,858.61
computer assessment
Short payment P 12,723.18
25% surcharge 3,180.80
72% interest 11,450.00
Penalty for understatement 500.00
Amount Due P 27 ,854.85
Add: Amusement Tax on golf
P 1,373,761.24
course
25% surcharge (P6,868,806.20
343,440.31
x 20%)
1,236,385.12
72% Interest 2,953,586.67
P 2,981,441.5210
GRAND TOTAL
(Emphasis supplied.)
Petitioner, through counsel, wrote respondent Camarillo a letter11 dated October 17, 2005 still disputing the
amusement tax assessment on its golf course for 1998 for being illegal. Petitioner, in a subsequent letter
dated November 30, 2005, proposed that:

While the question of the legality of the amusement tax on golf courses is still unresolved, may we propose
that Alta Vista Golf and Country Club settle first the other assessments contained in your Assessment Sheet
issued on October 11, 2005.

At this early stage, we also request that pending resolution of the legality of the amusement tax imposition
on golf courses in [the Revised Omnibus Tax Ordinance, as amended], Alta Vista Golf and Country Club
be issued the required Mayor's and/or Business Permit.12

Respondent Camarillo treated the letter dated October 17, 2005 of petitioner as a Protest of Assessment
and rendered on December 5, 2005 her ruling denying said Protest on the following grounds: (a) a more
thorough and comprehensive reading of the PBA case would reveal that the Court actually ruled therein
that PBA was liable to pay amusement tax, but to the national government, not the local government; (b)
section 42 of the Revised Omnibus Tax Ordinance, as amended, enjoyed the presumption of
constitutionality and petitioner failed to avail itself of the remedy under Section 187 of the Local Government
Code to challenge the legality or validity of Section 42 of the Revised Omnibus Tax Ordinance, as amended,
by filing an appeal with the Secretary of Justice within 30 days from effectivity of said ordinance; and ( c)
the Office of the City Attorney issued a letter dated July 9, 2004 affirming respondent Camarillo's position
that petitioner was liable to pay amusement tax on its golf course.13 Ultimately, respondent Camarillo held:

WHEREFORE, upon consideration of the legal grounds as above-mentioned, we reiterate our previous
stand on the validity of the ASSESSMENT SHEET pertaining to the Tax Deficiencies for CY 1998 and this
ruling serve as the FINAL DEMAND for immediate settlement and payment of your amusement tax liabilities
and/or delinquencies otherwise we will constrained (sic) the non-issuance of a Mayor's Business Permit for
nonpayment of the said deficiency on amusement tax and/or other tax liabilities as well as to file the
appropriate filing of administrative and judicial remedies for the collection of the said tax liability and the
letter treated as a Protest of Assessment that was duly submitted before this office is hereby DENIED.14

Shortly after, on January 12, 2006, petitioner was served with a Closure Order 15 dated December 28, 2005
issued by respondent City Mayor Osmeña. According to the Closure Order, petitioner committed blatant
violations of the laws and Cebu City Ordinances, to wit:

1. Operating a business without a business permit for five (5) years, from year 2001-2005, in relation
to Chapters I and II and the penalty clauses under Sections 4, 6, 8, 66 (f) and 114 of the City Tax Ordinance
No. 69, otherwise known as the REVISED CITY TAX ORDINANCE OF THE CITY OF CEBU, as amended
By C.O. 75;

2. Nonpayment of deficiency on Business Taxes and Fees amounting to Seventeen Thousand Four
Hundred Ninety-Nine Pesos and Sixty-Four Centavos (Php17,499.64), as adjusted, despite repeated
demands in violation [of] Sections 4 and 8 of City Tax Ordinance No. 69, as amended;

3. Nonpayment of deficiency on Amusement Tax and the penalties relative therewith totaling Two
Million Nine Hundred Fifty-Three Thousand Five Hundred Eighty-Six Pesos and Eighty-Six Centavos
(Php2,953,586.86) in violation of Sections 4 and 8 in relation to Section 42 of City Tax Ordinance No. 69,
as amended, business permit-violation of the Article 172, Revised Penal Code of the Philippines.
(Emphases supplied.)

The Closure Order established respondent Mayor Osmeña's authority for issuance of the same and
contained the following directive:

As the chief executive of the City, the Mayor has the power and duty to: Enforce all laws and ordinances
relative to the governance of the city x x x and, in addition to the foregoing, shall x x x Issue such executive
orders for the faithful and appropriate enforcement and execution of laws and ordinances x x x.1âwphi1
These are undeniable in the LOCAL GOVERNMENT CODE, Section 455, par. (2) and par. (2)(iii).

Not only that, these powers can be exercised under the general welfare clause of the Code, particularly
Section 16 thereof, where it is irrefutable that "every government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental of its
efficient and effective governance, and those which are essential to the promotion of the general welfare."

This CLOSURE ORDER precisely satisfies these legal precedents. Hence now, in view whereof, your
business establishment is hereby declared closed in direct contravention of the above-specified laws and
city ordinances. Please cease and desist from further operating your business immediately upon receipt of
this order.

This closure order is without prejudice to the constitutional/statutory right of the City to file criminal cases
against corporate officers, who act for and its behalf, for violations of Section 114 of the REVISED CITY
TAX ORDINANCE OF THE CITY OF CEBU and Section 516 of the LOCAL GOVERNMENT CODE, with
penalties of imprisonment and/or fine.

FOR STRICT AND IMMEDIATE COMPLIANCE.16

The foregoing developments prompted petitioner to file with the RTC on January 13, 2006 a Petition for
Injunction, Prohibition, Mandamus, Declaration of Nullity of Closure Order, Declaration of Nullity of
Assessment, and Declaration of Nullity of Section 42 of Cebu City Tax Ordinance, with Prayer for
Temporary Restraining Order and Writ of Preliminary Injunction, against respondents, which was docketed
as Civil Case No. CEB-31988.17 Petitioner eventually filed an Amended Petition on January 19, 2006. 18
Petitioner argued that the Closure Order is unconstitutional as it had been summarily issued in violation of
its right to due process; a city mayor has no power under the Local Government Code to deny the issuance
of a business permit and order the closure of a business for nonpayment of taxes; Section 42 of the Revised
Omnibus Tax Ordinance, as amended, is null and void for being ultra vires or beyond the taxing authority
of respondent Cebu City, and consequently, the assessment against petitioner for amusement tax for 1998
based on said Section 42 is illegal and unconstitutional; and assuming arguendo that respondent Cebu City
has the power to impose amusement tax on petitioner, such tax for 1998 already prescribed and could no
longer be enforced.

Respondents filed a Motion to Dismiss based on the grounds of (a) lack of jurisdiction of the RTC over the
subject matter; (b) non-exhaustion of administrative remedies; (c) noncompliance with Section 187 of the
Local Government Code, which provides the procedure and prescriptive periods for challenging the validity
of a local tax ordinance; (d) noncompliance with Section 252 of the Local Government Code and Section
75 of Republic Act No. 3857, otherwise known as the Revised Charter of the City of Cebu, requiring
payment under protest of the tax assessed; and (e) failure to establish the authority of Ma. Theresa Ozoa
(Ozoa) to institute the case on behalf of petitioner.19

In its Opposition to the Motion to Dismiss, petitioner countered that the RTC, a court of general jurisdiction,
could take cognizance of its Petition in Civil Case No. CEB-31988, which not only involved the issue of
legality or illegality of a tax ordinance, but also sought the declaration of nullity of the Closure Order and
the issuance of writs of injunction and prohibition. Petitioner likewise asserted that Section 195 of the Local
Government Code on the protest of assessment does not require payment under protest. Section 252 of
the same Code invoked by respondents applies only to real property taxes. In addition, petitioner
maintained that its Petition in Civil Case No. CEB-31988 could not be barred by prescription. There is
nothing in the Local Government Code that could deprive the courts of the power to determine the
constitutionality or validity of a tax ordinance due to prescription. It is the constitutional duty of the courts to
pass upon the validity of a tax ordinance and such duty cannot be limited or restricted. Petitioner further
contended that there is no need for exhaustion of administrative remedies given that the issues involved
are purely legal; the notice of closure is patently illegal for having been issued without due process; and
there is an urgent need for judicial intervention. Lastly, petitioner pointed out that there were sufficient
allegations in the Petition that its filing was duly authorized by petitioner. At any rate, petitioner already
attached to its Opposition its Board Resolution No. 104 authorizing Ozoa to file a case to nullify the Closure
Order. Thus, petitioner prayed for the denial of the Motion to Dismiss. 20

Respondents, in their Rejoinder to Petitioner's Opposition to the Motion to Dismiss, 21 asserted that the
Closure Order was just a necessary consequence of the nonpayment by petitioner of the amusement tax
assessed against it. The Revised Omnibus Tax Ordinance of respondent Cebu City directs that no permit
shall be issued to a business enterprise which made no proper payment of tax and, correspondingly, no
business enterprise may be allowed to operate or continue to operate without a business permit. The
fundamental issue in the case was still the nonpayment by petitioner of amusement tax. Respondents relied
on Reyes v. Court of Appeals,22 in which the Court categorically ruled that the prescriptive periods fixed in
Section 187 of the Local Government Code are mandatory and prerequisites before seeking redress from
a competent court. Section 42 of the Revised Omnibus Tax Ordinance, as amended, was passed on April
20, 1998, so the institution by petitioner of Civil Case No. CEB-31988 before the RTC on January 13, 2006
- without payment under protest of the assessed amusement tax and filing of an appeal before the Secretary
of Justice within 30 days from the effectivity of the Ordinance - was long barred by prescription.

After filing by the parties of their respective Memorandum, the RTC issued an Order23 dated March 16,
2006 denying the prayer of petitioner for issuance of a Temporary Restraining Order (TRO). The RTC found
that when the business permit of petitioner expired and it was operating without a business permit, it ceased
to have a legal right to do business. The RTC affirmed respondent Mayor Osmeña's authority to issue or
grant business licenses and permits pursuant to the police power inherent in his office; and such authority
to issue or grant business licenses and permits necessarily included the authority to suspend or revoke or
even refuse the issuance of the said business licenses and permits in case of violation of the conditions for
the issuance of the same. The RTC went on to hold that:

[Petitioner] was given opportunities to be heard when it filed a protest [of] the assessment which was
subsequently denied. To the mind of this court, this already constitutes the observance of due process and
that [petitioner] had already been given the opportunity to be heard. Due process and opportunity to be
heard does not necessarily mean winning the argument in one's favor but to be given the fair chance to
explain one's side or views with regards [to] the matter in issue, which in this case is the legality of the tax
assessment.

It is therefore clear that when this case was filed, [petitioner] had no more legal right in its favor for the
courts to protect. It would have been a different story altogether had [petitioner] paid the tax assessment
for the green fees even under protest and despite payment and [respondent] Mayor refused the issuance
of the business permit because all the requisites for the issuance of the said permit are all complied with.24

On March 20, 2006, petitioner paid under protest to respondent Cebu City, through respondent Camarillo,
the assessed amusement tax, plus penalties, interest, and surcharges, in the total amount of
P2,750,249.17.25

Since the parties agreed that the issues raised in Civil Case No. CEB-31988 were all legal in nature, the
RTC already considered the case submitted for resolution after the parties filed their respective
Memorandum.26

On March 14, 2007, the R TC issued a Resolution granting the Motion to Dismiss of respondents. Quoting
from Reyes and Hagonoy Market Vendor Association v. Municipality of Hagonoy, Bulacan, 27 the RTC
sustained the position of respondents that Section 187 of the Local Government Code is mandatory. Thus,
the RTC adjudged:

From the above cited cases, it can be gleaned that the period in the filing of the protests is important. In
other words, it is the considered opinion of this court [that] when a taxpayer questions the validity of a tax
ordinance passed by a local government legislative body, a different procedure directed in Section 187 is
to be followed. The reason for this could be because the tax ordinance is clearly different from a law passed
by Congress. The local government code has set several limitations on the taxing power of the local
government legislative bodies including the issue of what should be taxed.

In this case, since the Petitioner failed to comply with the procedure outlined in Section 187 of the Local
Government Code and the fact that this case was filed way beyond the period to file a case in court, then
this court believes that the action must fail.

Because of the procedural infirmity in bringing about this case to the court, then the substantial issue of the
propriety of imposing amusement taxes on the green fees could no longer be determined.

WHEREFORE, in view of the aforegoing, this case is hereby DISMISSED. 28

The RTC denied the Motion for Reconsideration of petitioner in an Order dated October 3, 2007.

Petitioner is presently before the Court on pure questions of law, viz.:

I. WHETHER OR NOT THE POWER OF JUDICIAL REVIEW OVER THE VALIDITY OF A LOCAL TAX
ORDINANCE HAS BEEN RESTRICTED BY SECTION 187 OF THE LOCAL GOVERNMENT CODE.

II. WHETHER OR NOT THE CITY OF CEBU OR ANY LOCAL GOVERNMENT CAN VALIDLY IMPOSE
AMUSEMENT TAX TO THE ACT OF PLAYING GOLF.29

There is merit in the instant Petition.

The RTC judgment on pure questions of law may be directly appealed to this Court via a petition for
review on certiorari.

Even before the RTC, the parties already acknowledged that the case between them involved only
questions of law; hence, they no longer presented evidence and agreed to submit the case for resolution
upon submission of their respective memorandum.

It is incontestable that petitioner may directly appeal to this Court from the judgment of the RTC on pure
questions of law via its Petition for Review on Certiorari. Rule 41, Section 2(c) of the Rules of Court provides
that "[i]n all cases where only questions of law are raised or involved, the appeal shall be to the Supreme
Court by petition for review on certiorari in accordance with Rule 45." As the Court declared in Bonifacio v.
Regional Trial Court of Makati, Branch 14930:

The established policy of strict observance of the judicial hierarchy of courts, as a rule, requires that
recourse must first be made to the lowerranked court exercising concurrent jurisdiction with a higher court.
A regard for judicial hierarchy clearly indicates that petitions for the issuance of extraordinary writs against
first level courts should be filed in the RTC and those against the latter should be filed in the Court of
Appeals. The rule is not iron-clad, however, as it admits of certain exceptions.

Thus, a strict application of the rule is unnecessary when cases brought before the appellate courts do not
involve factual but purely legal questions. (Citations omitted.)

"A question of law exists when the doubt or controversy concerns the correct application of law or
jurisprudence to a certain set of facts; or when the issue does not call for an examination of the probative
value of the evidence presented, the truth or falsehood of facts being admitted[;]" and it may be brought
directly before this Court, the undisputed final arbiter of all questions of law. 31

The present case is an exception to Section 187 of the Local Government Code and the doctrine of
exhaustion of administrative remedies.

Section 187 of the Local Government Code reads:

Sec. 187. Procedure ·for Approval and Effectivity of Tax Ordinances and Revenue Measures; Mandatory
Public Hearings. – The procedure for approval of local tax ordinances and revenue measures shall be in
accordance with the provisions of this Code: Provided, That public hearings shall be conducted for the
purpose prior to the enactment thereof: Provided, further, That any question on the constitutionality or
legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the
effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the date
of receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the
effectivity of the ordinance and the accrual and payment of the tax, fee, or charge levied therein: Provided,
finally, That within thirty (30) days after receipt of the decision or the lapse of the sixty-day period without
the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings with
a court of competent jurisdiction.

Indeed, the Court established in Reyes that the aforequoted provision is a significant procedural requisite
and, therefore, mandatory:

Clearly, the law requires that the dissatisfied taxpayer who questions the validity or legality of a tax
ordinance must file his appeal to the Secretary of Justice, within 30 days from effectivity thereof. In case
the Secretary decides the appeal, a period also of 30 days is allowed for an aggrieved party to go to court.
But if the Secretary does not act thereon, after the lapse of 60 days, a party could already proceed to seek
relief in court. These three separate periods are clearly given for compliance as a prerequisite before
seeking redress in a competent court. Such statutory periods are set to prevent delays as well as enhance
the orderly and speedy discharge of judicial functions. For this reason the courts construe these provisions
of statutes as mandatory.

A municipal tax ordinance empowers a local government unit to impose taxes. The power to tax is the most
effective instrument to raise needed revenues to finance and support the myriad activities of local
government units for the delivery of basic services essential to the promotion of the general welfare and
enhancement of peace, progress, and prosperity of the people. Consequently, any delay in implementing
tax measures would be to the detriment of the public. It is for this reason that protests over tax ordinances
are required to be done within certain time frames. In the instant case, it is our view that the failure of
petitioners to appeal to the Secretary of Justice within 30 days as required by Sec. 187 of R.A. 7160 is fatal
to their cause.32 (Citations omitted.)

The Court further affirmed in Hagonoy that:

At this point, it is apropos to state that the timeframe fixed by law for parties to avail of their legal remedies
before competent courts is not a "mere technicality" that can be easily brushed aside. The periods stated
in Section 187 of the Local Government Code are mandatory. Ordinance No. 28 is a revenue measure
adopted by the municipality of Hagonoy to fix and collect public market stall rentals. Being its lifeblood,
collection of revenues by the government is of paramount importance. The funds for the operation of its
agencies and provision of basic services to its inhabitants are largely derived from its revenues and
collections. Thus, it is essential that the validity of revenue measures is not left uncertain for a considerable
length of time. Hence, the law provided a time limit for an aggrieved party to assail the legality of revenue
measures and tax ordinances.33 (Citations omitted.)

Nevertheless, in later cases, the Court recognized exceptional circumstances that justify noncompliance by
a taxpayer with Section 187 of the Local Government Code.

The Court ratiocinated in Ongsuco v. Malones,34 thus:

It is true that the general rule is that before a party is allowed to seek the intervention of the court, he or she
should have availed himself or herself of all the means of administrative processes afforded him or her.
Hence, if resort to a remedy within the administrative machinery can still be made by giving the
administrative officer concerned every opportunity to decide on a matter that comes within his or her
jurisdiction, then such remedy should be exhausted first before the court's judicial power can be sought.
The premature invocation of the intervention of the court is fatal to one's cause of action. The doctrine of
exhaustion of administrative remedies is based on practical and legal reasons. The availment of
administrative remedy entails lesser expenses and provides for a speedier disposition of controversies.
Furthermore, the courts of justice, for reasons of comity and convenience, will shy away from a dispute until
the system of administrative redress has been completed and complied with, so as to give the administrative
agency concerned every opportunity to correct its error and dispose of the case. However, there are several
exceptions to this rule.

The rule on the exhaustion of administrative remedies is intended to preclude a court from arrogating unto
itself the authority to resolve a controversy, the jurisdiction over which is initially lodged with an
administrative body of special competence. Thus, a case where the issue raised is a purely legal
question, well within the competence; and the jurisdiction of the court and not the administrative
agency, would clearly constitute an exception. Resolving questions of law, which involve the
interpretation and application of laws, constitutes essentially an exercise of judicial power that is
exclusively allocated to the Supreme Court and such lower courts the Legislature may establish.

In this case, the parties are not disputing any factual matter on which they still need to present
evidence. The sole issue petitioners raised before the RTC in Civil Case No. 25843 was whether Municipal
Ordinance No. 98-01 was valid and enforceable despite the absence, prior to its enactment, of a public
hearing held in accordance with Article 276 of the Implementing Rules and Regulations of the Local
Government Code. This is undoubtedly a pure question of law, within the competence and
jurisdiction of the RTC to resolve.

Paragraph 2(a) of Section 5, Article VIII of the Constitution, expressly establishes the appellate jurisdiction
of this Court, and impliedly recognizes the original jurisdiction of lower courts over cases involving the
constitutionality or validity of an ordinance:

Section 5. The Supreme Court shall have the following powers:

xxxx

(2) Review, revise, reverse, modify or affirm on appeal or certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

In J.M Tuason and Co., Inc. v. Court of Appeals, Ynot v. Intermediate Appellate Court, and Commissioner
of Internal Revenue v. Santos, the Court has affirmed the jurisdiction of the RTC to resolve questions of
constitutionality and validity of laws (deemed to include local ordinances) in the first instance, without
deciding questions which pertain to legislative policy. (Emphases supplied, citations omitted.)

In Cagayan Electric Power and Light Co., Inc. (CEPALCO) v. City of Cagayan De Oro, 35 the Court initially
conceded that as in Reyes, the failure of taxpayer CEPALCO to appeal to the Secretary of Justice within
the statutory period of 30 days from the effectivity of the ordinance should have been fatal to its cause.
However, the Court purposefully relaxed the application of the rules in view of the more substantive matters.

Similar to Ongsuco and CEPALCO, the case at bar constitutes an exception to the general rule. Not only
does the instant Petition raise pure questions of law, but it also involves substantive matters imperative for
the Court to resolve.

Section 42 of the Revised Omnibus Tax Ordinance, as amended, imposing amusement tax on golf
courses is null and void as it is beyond the authority of respondent Cebu City to enact under the
Local Government Code.
The Local Government Code authorizes the imposition by local government units of amusement tax under
Section 140, which provides:

Sec. 140. Amusement Tax. - (a) The province may levy an amusement tax to be collected from the
proprietors, lessees, or operators of theaters, cinemas, concert halls, circuses, boxing stadia, and
other places of amusement at a rate of not more than thirty percent (30%) of the gross receipts from
admission fees.

(b) In the case of theaters or cinemas, the tax shall first be deducted and withheld by their proprietors,
lessees, or operators and paid to the provincial treasurer before the gross receipts are divided between
said proprietors, lessees, or operators and the distributors of the cinematographic films.

(c) The holding of operas, concerts, dramas, recitals, painting, and art exhibitions, flower shows, musical
programs, literary and oratorical presentations, except pop, rock, or similar concerts shall be exempt from
the payment of the tax hereon imposed.

(d) The sangguniang panlalawigan may prescribe the time, manner, terms and conditions for the payment
of tax. In case of fraud or failure to pay the tax, the sangguniang panlalawigan may impose such surcharges,
interests and penalties as it may deem appropriate.

(e) The proceeds from the amusement tax shall be shared equally by the province and "the municipality
where such amusement places are located. (Emphasis supplied.)

"Amusement places," as defined in Section 13l(c) of the Local Government Code, "include theaters,
cinemas, concert halls, circuses and other places of amusement where one seeks admission to entertain
oneself by seeing or viewing the show or performance."

The pronouncements of the Court in Pelizloy Realty Corporation v. The Province of Benguet36 are of
particular significance to this case. The Court, in Pelizloy Realty, declared null and void the second
paragraph of Article X, Section 59 of the Benguet Provincial Code, in so far as it imposes amusement taxes
on admission fees to resorts, swimming pools, bath houses, hot springs, and tourist spots. Applying the
principle of ejusdem generis, as well as the ruling in the PBA case, the Court expounded on the authority
of local government units to impose amusement tax under Section 140, in relation to Section 131(c), of the
Local Government Code, as follows:

Under the principle of ejusdem generis, "where a general word or phrase follows an enumeration of
particular and specific words of the same class or where the latter follow the former, the general word or
phrase is to be construed to include, or to be restricted to persons, things or cases akin to, resembling, or
of the same kind or class as those specifically mentioned."

The purpose and rationale of the principle was explained by the Court in National Power Corporation v.
Angas as follows:

The purpose of the rule on ejusdem generis is to give effect to both the particular and general words, by
treating the particular words as indicating the class and the general words as including all that is embraced
in said class, although not specifically named by the particular words. This is justified on the ground that if
the lawmaking body intended the general terms to be used in their unrestricted sense, it would have not
made an enumeration of particular subjects but would have used only general terms. [2 Sutherland,
Statutory Construction, 3rd ed., pp. 395-400].

In Philippine Basketball Association v. Court of Appeals, the Supreme Court had an opportunity to interpret
a starkly similar provision or the counterpart provision of Section 140 of the LGC in the Local Tax Code
then in effect. Petitioner Philippine Basketball Association (PBA) contended that it was subject to the
imposition by LGUs of amusement taxes (as opposed to amusement taxes imposed by the national
government). In support of its contentions, it cited Section 13 of Presidential Decree No. 231, otherwise
known as the Local Tax Code of 1973, (which is analogous to Section 140 of the LGC) providing the
following:

Section 13. Amusement tax on admission. – The province shall impose a tax on admission to be collected
from the proprietors, lessees, or operators of theaters, cinematographs, concert halls, circuses and other
places of amusement x x x.

Applying the principle of ejusdem generis, the Supreme Court rejected PBA's assertions and rioted that:

[I]n determining the meaning of the phrase 'other places of amusement', one must refer to the prior
enumeration of theaters, cinematographs, concert halls and circuses with artistic expression as their
common characteristic. Professional basketball games do not fall under the same category as theaters,
cinematographs, concert halls and circuses as the latter basically belong to artistic forms of entertainment
while the former caters to sports and gaming.

However, even as the phrase 'other places of amusement' was already clarified in Philippine Basketball
Association, Section 140 of the LGC adds to the enumeration of 'places of amusement' which may properly
be subject to amusement tax. Section 140 specifically mentions 'boxing stadia' in addition to "theaters,
cinematographs, concert halls [and] circuses" which were already mentioned in PD No. 231. Also, 'artistic
expression' as a characteristic does not pertain to 'boxing stadia'.

In the present case, the Court need not embark on a laborious effort at statutory construction. Section 131
(c) of the LGC already provides a clear definition of' amusement places':

xxxx

Indeed, theaters, cinemas, concert halls, circuses, and boxing stadia are bound by a common
typifying characteristic in that they are all venues primarily for the staging of spectacles or the
holding of public shows, exhibitions, performances, and other events meant to be viewed by an
audience. Accordingly, 'other places of amusement' must be interpreted in light of the typifying
characteristic of being venues "where one seeks admission to entertain oneself by seeing or
viewing the show or performances" or being venues primarily used to stage spectacles or hold
public shows, exhibitions, performances, and other events meant to be viewed by an audience.

As defined in The New Oxford American Dictionary, 'show' means "a spectacle or display of something,
typically an impressive one"; while 'performance' means "an act of staging or presenting a play, a concert,
or other form of entertainment." As such, the ordinary definitions of the words 'show' and 'performance'
denote not only visual engagement (i.e., the seeing or viewing of things) but also active doing (e.g.,
displaying, staging or presenting) such that actions are manifested to, and (correspondingly)
perceived by an audience.

Considering these, it is clear that resorts, swimming pools, bath houses, hot springs and tourist spots cannot
be considered venues primarily "where one seeks admission to entertain oneself by seeing or viewing the
show or performances". While it is true that they may be venues where people are visually engaged, they
are not primarily venues for their proprietors or operators to actively display, stage or present shows and/or
performances.

Thus, resorts, swimming pools, bath houses, hot springs and tourist spots do not belong to the same
category or class as theaters, cinemas, concert halls, circuses, and boxing stadia. It follows that they cannot
be considered as among the 'other places of amusement' contemplated by Section 140 of the LGC and
which may properly be subject to amusement taxes.37 (Emphases supplied, citations omitted.)

In light of Pelizloy Realty, a golf course cannot be considered a place of amusement. As petitioner asserted,
people do not enter a golf course to see or view a show or performance. Petitioner also, as proprietor or
operator of the golf course, does not actively display, stage, or present a show or performance. People go
to a golf course to engage themselves in a physical sport activity, i.e., to play golf; the same reason why
people go to a gym or court to play badminton or tennis or to a shooting range for target practice, yet there
is no showing herein that such gym, court, or shooting range is similarly considered an amusement place
subject to amusement tax. There is no basis for singling out golf courses for amusement tax purposes from
other places where people go to play sports. This is in contravention of one of the fundamental principles
of local taxation: that the "[t]axation shall be uniform in each local government unit." 38 Uniformity of taxation,
like the kindred concept of equal protection, requires that all subjects or objects of taxation, similarly
situated, are to be treated alike both in privileges and liabilities.39

Not lost on the Court is its declaration in Manila Electric Co. v. Province of Laguna40 that under the 1987
Constitution, "where there is neither a grant nor a prohibition by statute, the tax power [of local government
units] must be deemed to exist although Congress may provide statutory limitations and guidelines." Section
186 of the Local Government Code also expressly grants local government units the following residual
power to tax:

Sec. 186. Power to Levy Other Taxes; Fees, or Charges. – Local government units may exercise the power
to levy taxes, fees, or charges on any base or subject not otherwise specifically enumerated herein
or taxed under the provisions of the National Internal Revenue Code, as amended, or other
applicable laws: Provided, that the taxes, fees, or charges shall not be unjust, excessive, oppressive,
confiscatory or contrary to declared national policy: Provided, further, That the ordinance levying such
taxes, fees or charges shall not be enacted without any prior public hearing conducted for the
purpose.1awp++i1 (Emphasis supplied.)

Respondents, however, cannot claim that Section 42 of the Revised Omnibus Tax Ordinance, as amended,
imposing amusement tax on golf courses, was enacted pursuant to the residual power to tax of respondent
Cebu City. A local government unit may exercise its residual power to tax when there is neither a grant nor
a prohibition by statute; or when such taxes, fees, or charges are not otherwise specifically enumerated in
the Local Government Code, National Internal Revenue Code, as amended, or other applicable laws. In
the present case, Section 140, in relation to Section 131 (c), of the Local Government Code already
explicitly and clearly cover amusement tax and respondent Cebu City must exercise its authority to impose
amusement tax within the limitations and guidelines as set forth in said statutory provisions.

WHEREFORE, in view of all the foregoing, the Court GRANTS the instant Petition, and REVERSES and
SETS ASIDE the Resolution dated March 14, 2007 and the Order dated October 3, 2007 of the Regional
Trial Court, Cebu City, Branch 9 in Civil Case No. CEB-31988. The Court DECLARES NULL and VOID
the following: (a) Section 42 of the Revised Omnibus Tax Ordinance of the City of Cebu, as amended by
City Tax Ordinance Nos. LXXXII and LXXXIV, insofar as it imposes amusement tax of 20% on the gross
receipts on entrance, playing green, and/or admission fees of golf courses; (b) the tax assessment against
petitioner for amusement tax on its golf course for the year 1998 in the amount of Pl,373,761.24, plus
surcharges and interest pertaining to said amount, issued by the Office of the City Treasurer, City of Cebu;
and (c) the Closure Order dated December 28, 2005 issued against Alta Vista Golf and Country Club by
the Office of the Mayor, City of Cebu. The Court also ORDERS the City of Cebu to refund to Alta Vista Golf
and Country Club the amusement tax, penalties, surcharge, and interest paid under protest by the latter in
the total amount of P2, 750,249 .17 or to apply the same amount as tax credit against existing or future tax
liability of said Club.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice
Chairperson
 LUCAS P. BERSAMIN ESTELA M. PERLAS-BERNABE
Associate Justice Associate Justice
FRANCIS H. JARDELEZA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of the opinion of the Court's
Division.

MARIA LOURDES P.A. SERENO

Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 169435 February 27, 2008

MUNICIPALITY OF NUEVA ERA, ILOCOS NORTE, represented by its Municipal Mayor, CAROLINE
ARZADON-GARVIDA, petitioner,
vs.
MUNICIPALITY OF MARCOS, ILOCOS NORTE, represented by its Municipal Mayor, SALVADOR
PILLOS, and the HONORABLE COURT OF APPEALS, respondents.

DECISION

REYES, R.T., J.:

AS the law creating a municipality fixes its boundaries, settlement of boundary disputes between
municipalities is facilitated by carrying into effect the law that created them.

Any alteration of boundaries that is not in accordance with the law creating a municipality is not the carrying
into effect of that law but its amendment, which only the Congress can do.1

For Our review on certiorari is the Decision2 of the Court of Appeals (CA) reversing to a certain extent that3
of the Regional Trial Court (RTC), Branch 12, Laoag City, Ilocos Norte, in a case that originated from the
Sangguniang Panlalawigan (SP) of Ilocos Norte about the boundary dispute between the Municipalities of
Marcos and Nueva Era in Ilocos Norte.

The CA declared that Marcos is entitled to have its eastern boundary extended up "to the boundary line
between the province of Ilocos Norte and Kalinga-Apayao."4 By this extension of Marcos' eastern boundary,
the CA allocated to Marcos a portion of Nueva Era's territory.

The Facts

The Municipality of Nueva Era was created from the settlements of Bugayong, Cabittaoran, Garnaden,
Padpadon, Padsan, Paorpatoc, Tibangran, and Uguis which were previously organized as rancherias, each
of which was under the independent control of a chief. Governor General Francis Burton Harrison, acting
on a resolution passed by the provincial government of Ilocos Norte, united these rancherias and created
the township of Nueva Era by virtue of Executive Order (E.O.) No. 66 5 dated September 30, 1916.

The Municipality of Marcos, on the other hand, was created on June 22, 1963 pursuant to Republic Act
(R.A.) No. 3753 entitled "An Act Creating the Municipality of Marcos in the Province of Ilocos Norte." Section
1 of R.A. No. 3753 provides:

SECTION 1. The barrios of Capariaan, Biding, Escoda, Culao, Alabaan, Ragas and Agunit in the
Municipality of Dingras, Province of Ilocos Norte, are hereby separated from the said municipality and
constituted into a new and separate municipality to be known as the Municipality of Marcos, with the
following boundaries:

On the Northwest, by the barrios Biding-Rangay boundary going down to the barrios Capariaan-Gabon
boundary consisting of foot path and feeder road; on the Northeast, by the Burnay River which is the
common boundary of barrios Agunit and Naglayaan; on the East, by the Ilocos Norte-Mt. Province
boundary; on the South, by the Padsan River which is at the same time the boundary between the
municipalities of Banna and Dingras; on the West and Southwest, by the boundary between the
municipalities of Batac and Dingras.
The Municipality of Marcos shall have its seat of government in the barrio of Biding.

Based on the first paragraph of the said Section 1 of R.A. No. 3753, it is clear that Marcos shall be derived
from the listed barangays of Dingras, namely: Capariaan, Biding, Escoda, Culao, Alabaan, Ragas and
Agunit. The Municipality of Nueva Era or any of its barangays was not mentioned. Hence, if based only on
said paragraph, it is clear that Nueva Era may not be considered as a source of territory of Marcos.

There is no issue insofar as the first paragraph is concerned which named only Dingras as the mother
municipality of Marcos. The problem, however, lies in the description of Marcos' boundaries as stated in
the second paragraph, particularly in the phrase: "on the East, by the Ilocos Norte-Mt. Province boundary."

It must be noted that the term "Mt. Province" stated in the above phrase refers to the present adjoining
provinces of Benguet, Mountain Province, Ifugao, Kalinga and Apayao, which were then a single province.

Mt. Province was divided into the four provinces of Benguet, Mountain Province, Ifugao, and Kalinga-
Apayao by virtue of R.A. No. 4695 which was enacted on June 18, 1966. On February 14, 1995, the
province of Kalinga-Apayao, which comprises the sub-provinces of Kalinga and Apayao, was further
converted into the regular provinces of Kalinga and Apayao pursuant to R.A. No. 7878.

The part of then Mt. Province which was at the east of Marcos is now the province of Apayao. Hence, the
eastern boundary referred to by the second paragraph of Section 1 of R.A. No. 3753 is the present Ilocos
Norte-Apayao boundary.

On the basis of the said phrase, which described Marcos' eastern boundary, Marcos claimed that the middle
portion of Nueva Era, which adjoins its eastern side, formed part of its territory. Its reasoning was founded
upon the fact that Nueva Era was between Marcos and the Ilocos Norte-Apayao boundary such that if
Marcos was to be bounded on the east by the Ilocos Norte-Apayao boundary, part of Nueva Era would
consequently be obtained by it.6

Marcos did not claim any part of Nueva Era as its own territory until after almost 30 years, 7 or only on March
8, 1993, when its Sangguniang Bayan passed Resolution No. 93-015.8 Said resolution was entitled:
"Resolution Claiming an Area which is an Original Part of Nueva Era, But Now Separated Due to the
Creation of Marcos Town in the Province of Ilocos Norte."

Marcos submitted its claim to the SP of Ilocos Norte for its consideration and approval. The SP, on the
other hand, required Marcos to submit its position paper.9

In its position paper, Marcos alleged that since its northeastern and eastern boundaries under R.A. No.
3753 were the Burnay River and the Ilocos Norte-Mountain Province boundary, respectively, its eastern
boundary should not be limited to the former Dingras-Nueva Era boundary, which was coterminous and
aligned with the eastern boundary of Dingras. According to Marcos, its eastern boundary should extend
further to the east or up to the Ilocos-Norte-Mt. Province boundary pursuant to the description of its eastern
boundary under R.A. No. 3753.10

In view of its claim over the middle portion of Nueva Era, Marcos posited that Nueva Era was cut into two
parts. And since the law required that the land area of a municipality must be compact and contiguous,
Nueva Era's northern isolated portion could no longer be considered as its territory but that of Marcos'.
Thus, Marcos claimed that it was entitled not only to the middle portion 11 of Nueva Era but also to Nueva
Era's isolated northern portion. These areas claimed by Marcos were within Barangay Sto. Niño, Nueva
Era.

Nueva Era reacted to the claim of Marcos through its Resolution No. 1, Series of 1993. It alleged that since
time immemorial, its entire land area was an ancestral domain of the "tinguians," an indigenous cultural
community. It argued to the effect that since the land being claimed by Marcos must be protected for the
tinguians, it must be preserved as part of Nueva Era.12
According to Nueva Era, Marcos was created out of the territory of Dingras only. And since R.A. No. 3753
specifically mentioned seven (7) barrios of Dingras to become Marcos, the area which should comprise
Marcos should not go beyond the territory of said barrios.13

From the time Marcos was created in 1963, its eastern boundary had been considered to be aligned and
coterminous with the eastern boundary of the adjacent municipality of Dingras. However, based on a re-
survey in 1992, supposedly done to conform to the second paragraph of Section 1 of R.A. No. 3753, an
area of 15,400 hectares of Nueva Era was alleged to form part of Marcos.14 This was the area of Barangay
Sto. Niño, Nueva Era that Marcos claimed in its position paper.

On March 29, 2000, the SP of Ilocos Norte ruled in favor of Nueva Era. The fallo of its decision15 reads:

WHEREFORE, in view of all the foregoing, this Body has no alternative but to dismiss, as it hereby
DISMISSES said petition for lack of merit. The disputed area consisting of 15,400 hectares, more or less,
is hereby declared as part and portion of the territorial jurisdiction of respondent Nueva Era. 16

R.A. No. 3753 expressly named the barangays that would comprise Marcos, but none of Nueva Era's
barangays were mentioned. The SP thus construed, applying the rule of expressio unius est exclusio
alterius, that no part of Nueva Era was included by R.A. No. 3753 in creating Marcos.17

The SP ratiocinated that if Marcos was to be bounded by Mt. Province, it would encroach upon a portion,
not only of Nueva Era but also of Abra. Thus:

x x x Even granting, for the sake of argument, that the eastern boundary of Marcos is indeed Mountain
Province, Marcos will then be claiming a portion of Abra because the province, specifically Barangay Sto.
Niño, Nueva Era, is actually bounded on the East by the Province of Abra. Abra is situated between and
separates the Provinces of Ilocos Norte and Mountain Province.

This is precisely what this body would like to avoid. Statutes should be construed in the light of the object
to be achieved and the evil or mischief to be suppressed, and they should be given such construction as
will advance the object, suppress the mischief and secure the benefits intended. 18 (Citations omitted)

The SP further explained:

Invariably, it is not the letter, but the spirit of the law and the intent of the legislature that is important. When
the interpretation of the statute according to the exact and literal import of its words would lead to absurdity,
it should be construed according to the spirit and reason, disregarding if necessary the letters of the law. It
is believed that congress did not intend to have this absurd situation to be created when it created the
Municipality of Marcos. This body, by the mandate given to it by the RA 7160 otherwise known Local
Government Code, so believes that respondent Nueva Era or any portion thereof has been excluded from
the ambit of RA 3753. Under the principle of "espressio (sic) unios (sic) est exclusio alterius," by expressly
naming the barangays that will comprise the town of Marcos, those not mentioned are deemed excluded.
In Republic Act 4354, where Section 2 thereof enumerated the barrios comprising the City of Davao
excluding the petitioner Barrio Central as part of the said City, the court held that there arose a prima facie
conclusion that the said law abolished Barrio Central as part of Davao City.

Historically, the hinterlands of Nueva Era have been known to be the home of our brothers and sisters
belonging to peculiar groups of non-(C)hristian inhabitants with their own rich customs and traditions and
this body takes judicial notice that the inhabitants of Nueva Era have proudly claimed to be a part of this
rich culture. With this common ancestral heritage which unfortunately is absent with Marcos, let it not be
disturbed.19 (Emphasis ours and citations omitted)

RTC Decision

On appeal by Marcos, the RTC affirmed the decision of the SP in its decision20 of March 19, 2001. The
dispositive part of the RTC decision reads:
WHEREFORE, the instant appeal is hereby DISMISSED. The questioned decision of the Sangguniang
Panlalawigan of Ilocos Norte is hereby AFFIRMED.

No costs.

SO ORDERED.21

The RTC reasoned out in this wise:

The position of the Municipality of Marcos is that the provision of R.A. 3753 as regards its boundary on the
East which is the "Ilocos Norte-Mt. Province" should prevail.

On the other hand, the Municipality of Nueva Era posits the theory that only the barrios of the Municipality
of Dingras as stated in R.A. 3753 should be included in the territorial jurisdiction of the Municipality of
Marcos. The Sangguniang Panlalawigan agreed with the position of Nueva Era.

xxxx

An examination of the Congressional Records during the deliberations of the R.A. 3753 (House Bill No.
3721) shows the Explanatory Note of Congressman Simeon M. Valdez, 2nd District, Ilocos Norte, to wit:

EXPLANATORY NOTE

This bill seeks to create in the Province of Ilocos Norte a new municipality to be known as the Municipality
of Marcos, to be comprised by the present barrios of Capariaan, Biding Escoda, Culao, Alabaan, Ragas
and Agunit, all in the Municipality of Dingras of the same province. The seat of government will be in the
sitio of San Magro in the present barrio of Ragas.

xxxx

On the other hand, the Municipality of Dingras will not be adversely affected too much because its finances
will still be sound and stable. Its capacity to comply with its obligations, especially to its employees and
personnel, will not be diminished nor its operations paralyzed. On the contrary, economic development in
both the mother and the proposed municipalities will be accelerated.

In view of the foregoing, approval of this bill is earnestly requested.

(Sgd.) SIMEON M. VALDEZ

Congressman, 2nd District
Ilocos Norte22

Parenthetically, the legislative intent was for the creation of the Municipality of Marcos, Ilocos Norte
from the barrios (barangays) of the Municipality of Dingras, Ilocos Norte only. Hence, the
Municipality of Marcos cannot add any area beyond the territorial jurisdiction of the Municipality of
Dingras, Ilocos Norte. This conclusion might have been different only if the area being claimed by
the Municipality of Marcos is within the territorial jurisdiction of the Municipality of Dingras and not
the Municipality of Nueva Era. In such case, the two conflicting provisions may be harmonized by
including such area within the territorial jurisdiction of the Municipality of Dingras as within the
territorial jurisdiction of the Municipality of Marcos.23 (Emphasis ours)

CA Disposition

Still determined to have a more extensive eastern boundary, Marcos filed a petition for review 24 of the RTC
decision before the CA. The issues raised by Marcos before the CA were:

1. Whether or not the site of Hercules Minerals and Oil, Inc. which is within a Government Forest
Reservation in Barangay Sto. Niño, formerly of Nueva Era, is a part of the newly created Municipality of
Marcos, Ilocos Norte.
2. Whether or not the portion of Barangay Sto. Niño on the East which is separated from Nueva Era as a
result of the full implementation of the boundaries of the new Municipality of Marcos belongs also to Marcos
or to Nueva Era.25

The twin issues involved two portions of Nueva Era, viz.: (1) middle portion, where Hercules Minerals and
Oil, Inc. is located; and (2) northern portion of Nueva Era, which, according to Marcos, was isolated from
Nueva Era in view of the integration to Marcos of said middle portion.

Marcos prayed before the CA that the above two portions of Nueva Era be declared as part of its own
territory. It alleged that it was entitled to the middle portion of Nueva Era in view of the description of Marcos'
eastern boundary under R.A. No. 3753. Marcos likewise contended that it was entitled to the northern
portion of Nueva Era which was allegedly isolated from Nueva Era when Marcos was created. It posited
that such isolation of territory was contrary to law because the law required that a municipality must have a
compact and contiguous territory.26

In a Decision27 dated June 6, 2005, the CA partly reversed the RTC decision with the following disposition:

WHEREFORE, we partially GRANT the petition treated as one for certiorari. The Decisions of both the
Sangguniang Panlalawigan and Regional Trial Court of Ilocos Norte are REVERSED and SET ASIDE
insofar as they made the eastern boundary of the municipality of Marcos co-terminous with the eastern
boundary of Dingras town, and another is rendered extending the said boundary of Marcos to the boundary
line between the province of Ilocos Norte and Kalinga-Apayao, but the same Decisions are AFFIRMED
with respect to the denial of the claim of Marcos to the detached northern portion of barangay Sto. Niño
which should, as it is hereby ordered to, remain with the municipality of Nueva Era. No costs.

SO ORDERED.28

In concluding that the eastern boundary of Marcos was the boundary line between Ilocos Norte and Kalinga-
Apayao, the CA gave the following explanation:

Clearly then, both the SP and the RTC erred when they ruled that the eastern boundary of Marcos is only
coterminous with the eastern boundary of the adjacent municipality of Dingras and refused to extend it up
to the boundary line between the provinces of Ilocos Norte and Mountain Province (Kalinga-Apayao). R.A.
No. 3753, the law creating Marcos, is very explicit and leaves no room for equivocation that the boundaries
of Marcos town are:

"On the Northwest by the barrios Biding-Rangay boundary going down to the barrios Capariaan-
Gabon boundary consisting of foot path and feeder road; on the Northeast, by the Burnay River
which is the common boundary of barrios Agunit and Naglayaan; on the East, by the Ilocos Norte-
Mt. Province boundary; on the South by the Padsan River, which is at the same time the boundary
between the municipalities of Banna and Dingras; on the West and Southwest by the boundary
between the municipalities of Batac and Dingras."

To stop short at the eastern boundary of Dingras as the eastern boundary also of Marcos and refusing to
go farther to the boundary line between Ilocos Norte and Mountain Province (Kalinga-Apayao) is
tantamount to amending the law which Congress alone can do. Both the SP and RTC have no competence
to undo a valid act of Congress.

It is not correct to say that Congress did not intend to take away any part of Nueva Era and merge it with
Marcos for it is chargeable with conclusive knowledge that when it provided that the eastern boundary of
Marcos is the boundary line between Ilocos Norte and Mountain Province, (by the time of both the SB and
RTC Decision was already Kalinga-Apayao), it would be cutting through a portion of Nueva Era. As the law
is written so must it be applied. Dura lex sed lex!29

The CA likewise held that the province Abra was not located between Marcos and Kalinga-Apayao; and
that Marcos would not encroach upon a portion of Abra for it to be bounded by Kalinga-Apayao, to wit:
Nueva Era's contention that to lay out the eastern jurisdiction of Marcos to the boundary line between Ilocos
Norte and Mountain Province (Kalinga-Apayao) would mean annexing part of the municipality of Itnig,
province of Abra to Marcos as Abra is between Ilocos Norte and Mountain Province is geographically
erroneous. From Nueva Era's own map of Region 1, which also depicts the locations of Kalinga-Apayao,
Abra, Mountain Province, Benguet and Nueva Vizcaya after the partition of the old Mountain Province into
the provinces of Kalinga-Apayao, Ifugao, Mountain Province and Benguet, the province of Abra is situated
far to the south of Kalinga Apayao and is between the latter and the present Mountain Province, which is
farther south of Abra. Abra is part of the eastern boundary of Ilocos Sur while Kalinga-Apayao is the eastern
boundary of Ilocos Norte. Hence, in no way will the eastern boundary of the municipality of Marcos encroach
upon a portion of Abra.30

However, Marcos' claim over the alleged isolated northern portion of Nueva Era was denied. The CA ruled:

Going now to the other area involved, i.e., the portion of Sto. Niño that is separated from its mother town
Nueva Era and now lies east of the municipalities of Solsona and Dingras and north of Marcos, it bears
stressing that it is not included within the area of Marcos as defined by law. But since it is already detached
from Sto. Niño, Marcos is laying claim to it to be integrated into its territory by the SP because it is
contiguous to a portion of said municipality.

We hold that the SP has no jurisdiction or authority to act on the claim, for it will necessarily substantially
alter the north eastern and southern boundaries of Marcos from that defined by law and unduly enlarge its
area. Only Congress can do that. True, the SP may substantially alter the boundary of a barangay within
its jurisdiction. But this means the alteration of the boundary of a barangay in relation to another barangay
within the same municipality for as long as that will not result in any change in the boundary of that
municipality. The area in dispute therefore remains to be a part of Sto. Niño, a barangay of Nueva Era
although separated by the newly created Marcos town pursuant to Section 7(c) of the 1991 Local
Government Code which states:

SEC. 7. Creation and Conversion. - As a general rule, the creation of a local government unit or its
conversion from one level to another shall be based on verifiable indicators of viability and projected
capacity to provide services, to wit:

xxxx

(c) Land Area. - It must be contiguous, unless it comprises two or more islands or is separated by a local
government unit independent of the others; properly identified by metes and bounds with technical
descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its
populace.31

The CA also expressed the view that Marcos adopted the wrong mode of appeal in bringing the case to it.
The case, according to the CA, was appealable only to the RTC. Nonetheless, despite its pronouncement
that the case was dismissible, the CA took cognizance of the same by treating it as one for certiorari, to wit:

A final word. At the outset, we agonized over the dilemma of choosing between dismissing outright the
petition at bar or entertaining it. This is for the simple reason that a petition for review is a mode of appeal
and is not appropriate as the Local Government Code provides for the remedy of appeal in boundary
disputes only to the Regional Trial Court but not any further appeal to this Court. Appeal is a purely statutory
right. It cannot be exercised unless it is expressly granted by law. This is too basic to require the citation of
supporting authority.

xxxx

By the same token, since the Local Government Code does not explicitly grant the right of further appeal
from decisions of the RTCs in boundary disputes between or among local government units, Marcos town
cannot exercise that right from the adverse decision of the RTC of Ilocos Norte. Nonetheless, because of
the transcendental legal and jurisdictional issues involved, we solved our inceptive dilemma by treating the
petition at bar as a special civil action for certiorari.32

Nueva Era was not pleased with the decision of the CA. Hence, this petition for review on certiorari under
Rule 45.

Issues

Nueva Era now raises the following issues:

a) Whether or not, the Court of Appeals has jurisdiction on the Petition for Review on Appeal, since Sec.
119 of the Local Government Code, which provides that "An appeal to the Decision of the Sangguniang
Panlalawigan is exclusively vested to the Regional Trial Court, without further Appeal to the Court of
Appeals";

b) Whether or not, the Court of Appeals gravely abused its discretion, in treating the Petition for Review On
Appeal, filed under Rule 45, Revised Rules of Court, as a Petition for Certiorari, under Rule 65 of the
Revised Rules of Court;

c) Whether or not, the Court of Appeals erred in its appreciation of facts, in declaring that MARCOS East is
not coterminous with the Eastern boundary of its mother town-Dingras. That it has no factual and legal
basis to extend MARCOS territory beyond Brgys. Agunit (Ferdinand) and Culao (Elizabeth) of Marcos, and
to go further East, by traversing and disintegrating Brgy. Sto. Niño, and drawing parallel lines from Sto.
Niño, there lies Abra, not Mt. Province or Kalinga-Apayao.33

Basically, there are two (2) issues to resolve here: (1) whether or not the mode of appeal adopted by Marcos
in bringing the case to the CA is proper; and (2) whether or not the eastern boundary of Marcos extends
over and covers a portion of Nueva Era.

Our Ruling

Marcos correctly appealed the RTC judgment via petition for review under Rule 42.

Under Section 118(b) of the Local Government Code, "(b)oundary disputes involving two (2) or more
municipalities within the same province shall be referred for settlement to the sangguniang panlalawigan
concerned." The dispute shall be formally tried by the said sanggunian in case the disputing municipalities
fail to effect an amicable settlement.34

The SP of Ilocos validly took cognizance of the dispute between the parties. The appeal of the SP judgment
to the RTC was likewise properly filed by Marcos before the RTC. The problem, however, lies in whether
the RTC judgment may still be further appealed to the CA.

The CA pronounced that the RTC decision on the boundary dispute was not appealable to it. It ruled that
no further appeal of the RTC decision may be made pursuant to Section 119 of the Local Government
Code35 which provides:

SECTION 119. Appeal. - Within the time and manner prescribed by the Rules of Court, any party may
elevate the decision of the sanggunian concerned to the proper Regional Trial Court having jurisdiction
over the area in dispute. The Regional Trial Court shall decide the appeal within one (1) year from the filing
thereof. Pending final resolution of the disputed area prior to the dispute shall be maintained and continued
for all legal purposes.

The CA concluded that since only the RTC was mentioned as appellate court, the case may no longer be
further appealed to it. The CA stated that "(a)ppeal is a purely statutory right. It cannot be exercised unless
it is expressly granted by law. This is too basic to require the citation of supporting authority."36
The CA, however, justified its taking cognizance of the case by declaring that: "because of the
transcendental legal and jurisdictional issues involved, we solved our inceptive dilemma by treating the
petition at bar as a special civil action for certiorari."37

The CA erred in declaring that only the RTC has appellate jurisdiction over the judgment of the SP.

True, appeal is a purely statutory right and it cannot be exercised unless it is expressly granted by law.
Nevertheless, the CA can pass upon the petition for review precisely because the law allows it.

Batas Pambansa (B.P.) Blg. 129 or the Judiciary Reorganization Act of 1980, as amended by R.A. No.
7902,38 vests in the CA the appellate jurisdiction over all final judgments, decisions, resolutions, orders or
awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions,
among others.39 B.P. Blg. 129 has been further supplemented by the 1997 Rules of Civil Procedure, as
amended, which provides for the remedy of appeal via petition for review under Rule 42 to the CA in cases
decided by the RTC in the exercise of its appellate jurisdiction.

Thus, the CA need not treat the appeal via petition for review filed by Marcos as a petition for certiorari to
be able to pass upon the same. B.P. Blg. 129, as amended, which is supplemented by Rule 42 of the Rules
of Civil Procedure, gives the CA the authority to entertain appeals of such judgments and final orders
rendered by the RTC in the exercise of its appellate jurisdiction.

At the time of creation of Marcos, approval in a plebiscite of the creation of a local government unit
is not required.

Section 10, Article X of the 1987 Constitution provides that:

No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria established in the local government code and
subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.40

The purpose of the above constitutional provision was acknowledged by the Court through Justice Reynato
S. Puno in Miranda v. Aguirre,41 where it was held that:

The 1987 Constitution, more than any of our previous Constitutions, gave more reality to the sovereignty
of our people for it was borne out of the people power in the 1986 EDSA revolution. Its Section 10, Article
X addressed the undesirable practice in the past whereby local government units were created, abolished,
merged or divided on the basis of the vagaries of politics and not of the welfare of the people. Thus, the
consent of the people of the local government unit directly affected was required to serve as a checking
mechanism to any exercise of legislative power creating, dividing, abolishing, merging or altering the
boundaries of local government units. It is one instance where the people in their sovereign capacity decide
on a matter that affects them - direct democracy of the people as opposed to democracy thru people's
representatives. This plebiscite requirement is also in accord with the philosophy of the Constitution
granting more autonomy to local government units.42

Nueva Era contends that the constitutional and statutory43 plebiscite requirement for the creation of a local
government unit is applicable to this case. It posits that the claim of Marcos to its territory should be denied
due to lack of the required plebiscite.

We agree with Nueva Era's contention that Marcos' claim over parts of its territory is not tenable. However,
the reason is not the lack of the required plebiscite under the 1987 and 1973 constitutions and the Local
Government Code of 1991 but other reasons as will be discussed below.

At the time Marcos was created, a plebiscite was not required by law to create a local government unit.
Hence, Marcos was validly created without conducting a plebiscite. As a matter of fact, no plebiscite was
conducted in Dingras, where it was derived.
Lex prospicit, non respicit. The law looks forward, not backward.44 It is the basic norm that provisions of the
fundamental law should be given prospective application only, unless legislative intent for its retroactive
application is so provided.45

In the comparable case of Ceniza v. Commission on Elections46 involving the City of Mandaue, the Court
has this to say:

Petitioners assail the charter of the City of Mandaue as unconstitutional for not having been ratified by the
residents of the city in a plebiscite. This contention is untenable. The Constitutional requirement that the
creation, division, merger, abolition, or alteration of the boundary of a province, city, municipality, or barrio
should be subject to the approval by the majority of the votes cast in a plebiscite in the governmental unit
or units affected is a new requirement that came into being only with the 1973 Constitution. It is prospective
in character and therefore cannot affect the creation of the City of Mandaue which came into existence on
June 21, 1969.47 (Citations omitted and underlining supplied).

Moreover, by deciding this case, We are not creating Marcos but merely interpreting the law that created
it. Its creation was already a fait accompli. Therefore, there is no reason for Us to further require a plebiscite.

As pointed out by Justice Isagani Cruz, to wit:

Finally, it should be observed that the provisions of the Constitution should be given only a prospective
application unless the contrary is clearly intended. Were the rule otherwise, rights already acquired or
vested might be unduly disturbed or withdrawn even in the absence of an unmistakable intention to place
them within the scope of the Constitution.48

No part of Nueva Era's territory was taken for the creation of Marcos under R.A. No. 3753.

Only the barrios (now barangays) of Dingras from which Marcos obtained its territory are named in R.A.
No. 3753. To wit:

SECTION 1. The barrios of Capariaan, Biding, Escoda, Culao, Alabaan, Ragas and Agunit in the
Municipality of Dingras, Province of Ilocos Norte, are hereby separated from the said municipality and
constituted into a new and separate municipality to be known as the Municipality of Marcos, with the
following boundaries:

Since only the barangays of Dingras are enumerated as Marcos' source of territory, Nueva Era's territory
is, therefore, excluded.

Under the maxim expressio unius est exclusio alterius, the mention of one thing implies the exclusion of
another thing not mentioned. If a statute enumerates the things upon which it is to operate, everything else
must necessarily and by implication be excluded from its operation and effect.49 This rule, as a guide to
probable legislative intent, is based upon the rules of logic and natural workings of the human mind. 50

Had the legislature intended other barangays from Nueva Era to become part of Marcos, it could have
easily done so by clear and concise language. Where the terms are expressly limited to certain matters, it
may not by interpretation or construction be extended to other matters. 51 The rule proceeds from the
premise that the legislature would not have made specified enumerations in a statute had the intention
been not to restrict its meaning and to confine its terms to those expressly mentioned.52

Moreover, since the barangays of Nueva Era were not mentioned in the enumeration of barangays out of
which the territory of Marcos shall be set, their omission must be held to have been done intentionally. This
conclusion finds support in the rule of casus omissus pro omisso habendus est, which states that a person,
object or thing omitted from an enumeration must be held to have been omitted intentionally.53
Furthermore, this conclusion on the intention of the legislature is bolstered by the explanatory note of the
bill which paved the way for the creation of Marcos. Said explanatory note mentioned only Dingras as the
mother municipality of Marcos.

Where there is ambiguity in a statute, as in this case, courts may resort to the explanatory note to clarify
the ambiguity and ascertain the purpose and intent of the statute.54

Despite the omission of Nueva Era as a mother territory in the law creating Marcos, the latter still contends
that said law included Nueva Era. It alleges that based on the description of its boundaries, a portion of
Nueva Era is within its territory.

The boundaries of Marcos under R.A. No. 3753 read:

On the Northwest, by the barrios Biding-Rangay boundary going down to the barrios Capariaan-Gabon
boundary consisting of foot path and feeder road; on the Northeast, by the Burnay River which is the
common boundary of barrios Agunit and Naglayaan; on the East, by the Ilocos Norte-Mt. Province
boundary; on the South, by the Padsan River which is at the same time the boundary between the
municipalities of Banna and Dingras; on the West and Southwest, by the boundary between the
municipalities of Batac and Dingras.

Marcos contends that since it is "bounded on the East, by the Ilocos Norte-Mt. Province boundary," a portion
of Nueva Era formed part of its territory because, according to it, Nueva Era is between the Marcos and
Ilocos Norte-Mt. Province boundary. Marcos posits that in order for its eastern side to reach the Ilocos
Norte-Mt. Province boundary, it will necessarily traverse the middle portion of Nueva Era.

Marcos further claims that it is entitled not only to the middle portion of Nueva Era but also to its northern
portion which, as a consequence, was isolated from the major part of Nueva Era.

We cannot accept the contentions of Marcos.

Only Dingras is specifically named by law as source territory of Marcos. Hence, the said description of
boundaries of Marcos is descriptive only of the listed barangays of Dingras as a compact and contiguous
territory.

Considering that the description of the eastern boundary of Marcos under R.A. No. 3753 is ambiguous, the
same must be interpreted in light of the legislative intent.

The law must be given a reasonable interpretation, to preclude absurdity in its application.55 We thus uphold
the legislative intent to create Marcos out of the territory of Dingras only.

Courts must give effect to the general legislative intent that can be discovered from or is unraveled by the
four corners of the statute, and in order to discover said intent, the whole statute, and not only a particular
provision thereof, should be considered.56 Every section, provision or clause of the statute must be
expounded by reference to each other in order to arrive at the effect contemplated by the legislature. The
intention of the legislator must be ascertained from the whole text of the law, and every part of the act is to
be taken into view.57

It is axiomatic that laws should be given a reasonable interpretation, not one which defeats the very purpose
for which they were passed. This Court has in many cases involving the construction of statutes always
cautioned against narrowly interpreting a statute as to defeat the purpose of the legislature and stressed
that it is of the essence of judicial duty to construe statutes so as to avoid such a deplorable result (of
injustice or absurdity) and that therefore "a literal interpretation is to be rejected if it would be unjust or lead
to absurd results."58

Statutes are to be construed in the light of the purposes to be achieved and the evils sought to be remedied.
Thus, in construing a statute, the reason for its enactment should be kept in mind and the statute should
be construed with reference to the intended scope and purpose. The court may consider the spirit and
reason of the statute, where a literal meaning would lead to absurdity, contradiction, injustice, or would
defeat the clear purpose of the lawmakers.59

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals is partly REVERSED. The
Decision of the Regional Trial Court in Ilocos Norte is Reinstated.

SO ORDERED.

RUBEN T. REYES
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

*LEONARDO A. QUISUMBING **CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA M. AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice
 SUPREME COURT
Manila

EN BANC

G.R. No. 106719 September 21, 1993

DRA. BRIGIDA S. BUENASEDA, Lt. Col. ISABELO BANEZ, JR., ENGR. CONRADO REY
MATIAS, Ms. CORA S. SOLIS and Ms. ENYA N. LOPEZ, petitioners,
vs.
SECRETARY JUAN FLAVIER, Ombudsman CONRADO M. VASQUEZ, and NCMH NURSES
ASSOCIATION, represented by RAOULITO GAYUTIN, respondents.

Renato J. Dilag and Benjamin C. Santos for petitioners.

Danilo C. Cunanan for respondent Ombudsman.

Crispin T. Reyes and Florencio T. Domingo for private respondent.

QUIASON, J.:

This is a Petition for Certiorari, Prohibition and Mandamus, with Prayer for Preliminary Injunction or
Temporary Restraining Order, under Rule 65 of the Revised Rules of Court.

Principally, the petition seeks to nullify the Order of the Ombudsman dated January 7, 1992,
directing the preventive suspension of petitioners,
Dr. Brigida S. Buenaseda, Chief of Hospital III; Isabelo C. Banez, Jr., Administrative Officer III;
Conrado Rey Matias, Technical Assistant to the Chief of Hospital; Cora C. Solis, Accountant III; and
Enya N. Lopez, Supply Officer III, all of the National Center for Mental Health. The petition also asks
for an order directing the Ombudsman to disqualify Director Raul Arnaw and Investigator Amy de
Villa-Rosero, of the Office of the Ombudsman, from participation in the preliminary investigation of
the charges against petitioner (Rollo, pp. 2-17; Annexes to Petition, Rollo, pp. 19-21).

The questioned order was issued in connection with the administrative complaint filed with the
Ombudsman (OBM-ADM-0-91-0151) by the private respondents against the petitioners for violation
of the Anti-Graft and Corrupt Practices Act.

According to the petition, the said order was issued upon the recommendation of Director Raul
Arnaw and Investigator Amy de Villa-Rosero, without affording petitioners the opportunity to
controvert the charges filed against them. Petitioners had sought to disqualify Director Arnaw and
Investigator Villa-Rosero for manifest partiality and bias (Rollo, pp. 4-15).

On September 10, 1992, this Court required respondents' Comment on the petition.

On September 14 and September 22, 1992, petitioners filed a "Supplemental Petition (Rollo, pp.
124-130); Annexes to Supplemental Petition; Rollo pp. 140-163) and an "Urgent Supplemental
Manifestation" (Rollo,
pp. 164-172; Annexes to Urgent Supplemental Manifestation; Rollo, pp. 173-176), respectively,
averring developments that transpired after the filing of the petition and stressing the urgency for the
issuance of the writ of preliminary injunction or temporary restraining order.

On September 22, 1992, this Court ". . . Resolved to REQUIRE the respondents to MAINTAIN in the
meantime, the STATUS QUO pending filing of comments by said respondents on the original
supplemental manifestation" (Rollo, p. 177).

On September 29, 1992, petitioners filed a motion to direct respondent Secretary of Health to
comply with the Resolution dated September 22, 1992 (Rollo, pp. 182-192, Annexes, pp. 192-203).
In a Resolution dated October 1, 1992, this Court required respondent Secretary of Health to
comment on the said motion.

On September 29, 1992, in a pleading entitled "Omnibus Submission," respondent NCMH Nurses
Association submitted its Comment to the Petition, Supplemental Petition and Urgent Supplemental
Manifestation. Included in said pleadings were the motions to hold the lawyers of petitioners in
contempt and to disbar them (Rollo, pp. 210-267). Attached to the "Omnibus Submission" as
annexes were the orders and pleadings filed in Administrative Case No. OBM-ADM-0-91-1051
against petitioners (Rollo, pp. 268-480).

The Motion for Disbarment charges the lawyers of petitioners with:

(1) unlawfully advising or otherwise causing or inducing their clients — petitioners Buenaseda, et al.,
to openly defy, ignore, disregard, disobey or otherwise violate, maliciously evade their preventive
suspension by Order of July 7, 1992 of the Ombudsman . . ."; (2) "unlawfully interfering with and
obstructing the implementation of the said order (Omnibus Submission, pp. 50-52; Rollo, pp. 259-
260); and (3) violation of the Canons of the Code of Professional Responsibility and of
unprofessional and unethical conduct "by foisting blatant lies, malicious falsehood and outrageous
deception" and by committing subornation of perjury, falsification and fabrication in their pleadings
(Omnibus Submission, pp. 52-54; Rollo, pp. 261-263).

On November 11, 1992, petitioners filed a "Manifestation and Supplement to 'Motion to Direct
Respondent Secretary of Health to Comply with 22 September 1992 Resolution'" (Manifestation
attached to Rollo without pagination between pp. 613 and 614 thereof).

On November 13, 1992, the Solicitor General submitted its Comment dated November 10, 1992,
alleging that: (a) "despite the issuance of the September 22, 1992 Resolution directing respondents
to maintain the status quo, respondent Secretary refuses to hold in abeyance the implementation of
petitioners' preventive suspension; (b) the clear intent and spirit of the Resolution dated September
22, 1992 is to hold in abeyance the implementation of petitioners' preventive suspension, the status
quo obtaining the time of the filing of the instant petition; (c) respondent Secretary's acts in refusing
to hold in abeyance implementation of petitioners' preventive suspension and in tolerating and
approving the acts of Dr. Abueva, the OIC appointed to replace petitioner Buenaseda, are in
violation of the Resolution dated September 22, 1992; and
(d) therefore, respondent Secretary should be directed to comply with the Resolution dated
September 22, 1992 immediately, by restoring the status quo ante contemplated by the aforesaid
resolution" (Comment attached to Rollo without paginations between pp. 613-614 thereof).

In the Resolution dated November 25, 1992, this Court required respondent Secretary to comply
with the aforestated status quo order, stating inter alia, that:

It appearing that the status quo ante litem motam, or the last peaceable uncontested
status which preceded the present controversy was the situation obtaining at the time
 of the filing of the petition at bar on September 7, 1992 wherein petitioners were then
actually occupying their respective positions, the Court hereby ORDERS that
petitioners be allowed to perform the duties of their respective positions and to
receive such salaries and benefits as they may be lawfully entitled to, and that
respondents and/or any and all persons acting under their authority desist and refrain
from performing any act in violation of the aforementioned Resolution of September
22, 1992 until further orders from the Court (Attached to Rollo after p. 615 thereof).

On December 9, 1992, the Solicitor General, commenting on the Petition, Supplemental Petition and
Supplemental Manifestation, stated that (a) "The authority of the Ombudsman is only to recommend
suspension and he has no direct power to suspend;" and (b) "Assuming the Ombudsman has the
power to directly suspend a government official or employee, there are conditions required by law for
the exercise of such powers; [and] said conditions have not been met in the instant case" (Attached
to Rollo without pagination).

In the pleading filed on January 25, 1993, petitioners adopted the position of the Solicitor General
that the Ombudsman can only suspend government officials or employees connected with his office.
Petitioners also refuted private respondents' motion to disbar petitioners' counsel and to cite them for
contempt (Attached to Rollo without pagination).

The crucial issue to resolve is whether the Ombudsman has the power to suspend government
officials and employees working in offices other than the Office of the Ombudsman, pending the
investigation of the administrative complaints filed against said officials and employees.

In upholding the power of the Ombudsman to preventively suspend petitioners, respondents (Urgent
Motion to Lift Status Quo, etc, dated January 11, 1993, pp. 10-11), invoke Section 24 of R.A. No.
6770, which provides:

Sec. 24. Preventive Suspension. — The Ombudsman or his Deputy may preventively
suspend any officer or employee under his authority pending an investigation, if in his
judgment the evidence of guilt is strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charge would warrant removal from the service; or (c)
the respondent's continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of
Ombudsman but not more than six months, without pay, except when the delay in
the disposition of the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period of such delay shall
not be counted in computing the period of suspension herein provided.

Respondents argue that the power of preventive suspension given the Ombudsman under Section
24 of R.A. No. 6770 was contemplated by Section 13 (8) of Article XI of the 1987 Constitution, which
provides that the Ombudsman shall exercise such other power or perform such functions or duties
as may be provided by law."

On the other hand, the Solicitor General and the petitioners claim that under the 1987 Constitution,
the Ombudsman can only recommend to the heads of the departments and other agencies the
preventive suspension of officials and employees facing administrative investigation conducted by
his office. Hence, he cannot order the preventive suspension himself.
They invoke Section 13(3) of the 1987 Constitution which provides that the Office of the
Ombudsman shall have inter alia the power, function, and duty to:

Direct the officer concerned to take appropriate action against a public official or
employee at fault, and recommend his removal, suspension, demotion, fine, censure
or prosecution, and ensure compliance therewith.

The Solicitor General argues that under said provision of the Constitutions, the Ombudsman has
three distinct powers, namely: (1) direct the officer concerned to take appropriate action against
public officials or employees at fault; (2) recommend their removal, suspension, demotion fine,
censure, or prosecution; and (3) compel compliance with the recommendation (Comment dated
December 3, 1992, pp. 9-10).

The line of argument of the Solicitor General is a siren call that can easily mislead, unless one bears
in mind that what the Ombudsman imposed on petitioners was not a punitive but only a preventive
suspension.

When the constitution vested on the Ombudsman the power "to recommend the suspension" of a
public official or employees (Sec. 13 [3]), it referred to "suspension," as a punitive measure. All the
words associated with the word "suspension" in said provision referred to penalties in administrative
cases, e.g. removal, demotion, fine, censure. Under the rule of Noscitor a sociis, the word
"suspension" should be given the same sense as the other words with which it is associated. Where
a particular word is equally susceptible of various meanings, its correct construction may be made
specific by considering the company of terms in which it is found or with which it is associated (Co
Kim Chan v. Valdez Tan Keh, 75 Phil. 371 [1945]; Caltex (Phils.) Inc. v. Palomar, 18 SCRA 247
[1966]).

Section 24 of R.A. No. 6770, which grants the Ombudsman the power to preventively suspend
public officials and employees facing administrative charges before him, is a procedural, not a penal
statute. The preventive suspension is imposed after compliance with the requisites therein set forth,
as an aid in the investigation of the administrative charges.

Under the Constitution, the Ombudsman is expressly authorized to recommend to the appropriate
official the discipline or prosecution of erring public officials or employees. In order to make an
intelligent determination whether to recommend such actions, the Ombudsman has to conduct an
investigation. In turn, in order for him to conduct such investigation in an expeditious and efficient
manner, he may need to suspend the respondent.

The need for the preventive suspension may arise from several causes, among them, the danger of
tampering or destruction of evidence in the possession of respondent; the intimidation of witnesses,
etc. The Ombudsman should be given the discretion to decide when the persons facing
administrative charges should be preventively suspended.

Penal statutes are strictly construed while procedural statutes are liberally construed (Crawford,
Statutory Construction, Interpretation of Laws, pp. 460-461; Lacson v. Romero, 92 Phil. 456 [1953]).
The test in determining if a statute is penal is whether a penalty is imposed for the punishment of a
wrong to the public or for the redress of an injury to an individual (59 Corpuz Juris, Sec. 658;
Crawford, Statutory Construction, pp. 496-497). A Code prescribing the procedure in criminal cases
is not a penal statute and is to be interpreted liberally (People v. Adler, 140 N.Y. 331; 35 N.E. 644).

The purpose of R.A. No. 6770 is to give the Ombudsman such powers as he may need to perform
efficiently the task committed to him by the Constitution. Such being the case, said statute,
particularly its provisions dealing with procedure, should be given such interpretation that will
effectuate the purposes and objectives of the Constitution. Any interpretation that will hamper the
work of the Ombudsman should be avoided.

A statute granting powers to an agency created by the Constitution should be liberally construed for
the advancement of the purposes and objectives for which it was created (Cf. Department of Public
Utilities v. Arkansas Louisiana Gas. Co., 200 Ark. 983, 142 S.W. (2d) 213 [1940]; Wallace v.
Feehan, 206 Ind. 522, 190 N.E., 438 [1934]).

In Nera v. Garcia, 106 Phil. 1031 [1960], this Court, holding that a preventive suspension is not a
penalty, said:

Suspension is a preliminary step in an administrative investigation. If after such

investigation, the charges are established and the person investigated is found guilty
of acts warranting his removal, then he is removed or dismissed. This is the penalty.

To support his theory that the Ombudsman can only preventively suspend respondents in
administrative cases who are employed in his office, the Solicitor General leans heavily on the
phrase "suspend any officer or employee under his authority" in Section 24 of R.A. No. 6770.

The origin of the phrase can be traced to Section 694 of the Revised Administrative Code, which
dealt with preventive suspension and which authorized the chief of a bureau or office to "suspend
any subordinate or employee in his bureau or under his authority pending an investigation . . . ."

Section 34 of the Civil Service Act of 1959 (R.A. No. 2266), which superseded Section 694 of the
Revised Administrative Code also authorized the chief of a bureau or office to "suspend any
subordinate officer or employees, in his bureau or under his authority."

However, when the power to discipline government officials and employees was extended to the
Civil Service Commission by the Civil Service Law of 1975 (P.D. No. 805), concurrently with the
President, the Department Secretaries and the heads of bureaus and offices, the phrase
"subordinate officer and employee in his bureau" was deleted, appropriately leaving the phrase
"under his authority." Therefore, Section 41 of said law only mentions that the proper disciplining
authority may preventively suspend "any subordinate officer or employee under his authority pending
an investigation . . ." (Sec. 41).

The Administrative Code of 1987 also empowered the proper disciplining authority to "preventively
suspend any subordinate officer or employee under his authority pending an investigation" (Sec. 51).

The Ombudsman Law advisedly deleted the words "subordinate" and "in his bureau," leaving the
phrase to read "suspend any officer or employee under his authority pending an investigation . . . ."
The conclusion that can be deduced from the deletion of the word "subordinate" before and the
words "in his bureau" after "officer or employee" is that the Congress intended to empower the
Ombudsman to preventively suspend all officials and employees under investigation by his office,
irrespective of whether they are employed "in his office" or in other offices of the government. The
moment a criminal or administrative complaint is filed with the Ombudsman, the respondent therein
is deemed to be "in his authority" and he can proceed to determine whether said respondent should
be placed under preventive suspension.

In their petition, petitioners also claim that the Ombudsman committed grave abuse of discretion
amounting to lack of jurisdiction when he issued the suspension order without affording petitioners
the opportunity to confront the charges against them during the preliminary conference and even
after petitioners had asked for the disqualification of Director Arnaw and Atty. Villa-Rosero (Rollo, pp.
6-13). Joining petitioners, the Solicitor General contends that assuming arguendo that the
Ombudsman has the power to preventively suspend erring public officials and employees who are
working in other departments and offices, the questioned order remains null and void for his failure
to comply with the requisites in Section 24 of the Ombudsman Law (Comment dated December 3,
1992, pp. 11-19).

Being a mere order for preventive suspension, the questioned order of the Ombudsman was validly
issued even without a full-blown hearing and the formal presentation of evidence by the parties.
In Nera, supra, petitioner therein also claimed that the Secretary of Health could not preventively
suspend him before he could file his answer to the administrative complaint. The contention of
petitioners herein can be dismissed perfunctorily by holding that the suspension meted out was
merely preventive and therefore, as held in Nera, there was "nothing improper in suspending an
officer pending his investigation and before tho charges against him are heard . . . (Nera v.
Garcia., supra).

There is no question that under Section 24 of R.A. No. 6770, the Ombudsman cannot order the
preventive suspension of a respondent unless the evidence of guilt is strong and (1) the charts
against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in
the performance of duty; (2) the charge would warrant removal from the service; or (3) the
respondent's continued stay in office may prejudice the case filed against him.

The same conditions for the exercise of the power to preventively suspend officials or employees
under investigation were found in Section 34 of R.A. No. 2260.

The import of the Nera decision is that the disciplining authority is given the discretion to decide
when the evidence of guilt is strong. This fact is bolstered by Section 24 of R.A. No. 6770, which
expressly left such determination of guilt to the "judgment" of the Ombudsman on the basis of the
administrative complaint. In the case at bench, the Ombudsman issued the order of preventive
suspension only after: (a) petitioners had filed their answer to the administrative complaint and the
"Motion for the Preventive Suspension" of petitioners, which incorporated the charges in the criminal
complaint against them (Annex 3, Omnibus Submission, Rollo, pp. 288-289; Annex 4, Rollo,
pp. 290-296); (b) private respondent had filed a reply to the answer of petitioners, specifying 23
cases of harassment by petitioners of the members of the private respondent (Annex 6, Omnibus
Submission, Rollo, pp. 309-333); and (c) a preliminary conference wherein the complainant and the
respondents in the administrative case agreed to submit their list of witnesses and documentary
evidence.

Petitioners herein submitted on November 7, 1991 their list of exhibits (Annex 8 of Omnibus
Submission, Rollo, pp. 336-337) while private respondents submitted their list of exhibits (Annex 9 of
Omnibus Submission, Rollo, pp. 338-348).

Under these circumstances, it can not be said that Director Raul Arnaw and Investigator Amy de
Villa-Rosero acted with manifest partiality and bias in recommending the suspension of petitioners.
Neither can it be said that the Ombudsman had acted with grave abuse of discretion in acting
favorably on their recommendation.

The Motion for Contempt, which charges the lawyers of petitioners with unlawfully causing or
otherwise inducing their clients to openly defy and disobey the preventive suspension as ordered by
the Ombudsman and the Secretary of Health can not prosper (Rollo, pp. 259-261). The Motion
should be filed, as in fact such a motion was filed, with the Ombudsman. At any rate, we find that the
acts alleged to constitute indirect contempt were legitimate measures taken by said lawyers to
question the validity and propriety of the preventive suspension of their clients.

On the other hand, we take cognizance of the intemperate language used by counsel for private
respondents hurled against petitioners and their counsel (Consolidated: (1) Comment on Private
Respondent" "Urgent Motions, etc.;
(2) Adoption of OSG's Comment; and (3) Reply to Private Respondent's Comment and
Supplemental Comment, pp. 4-5).

A lawyer should not be carried away in espousing his client's cause. The language of a lawyer, both
oral or written, must be respectful and restrained in keeping with the dignity of the legal profession
and with his behavioral attitude toward his brethren in the profession (Lubiano v. Gordolla, 115
SCRA 459 [1982]). The use of abusive language by counsel against the opposing counsel
constitutes at the same time a disrespect to the dignity of the court of justice. Besides, the use of
impassioned language in pleadings, more often than not, creates more heat than light.

The Motion for Disbarment (Rollo, p. 261) has no place in the instant special civil action, which is
confined to questions of jurisdiction or abuse of discretion for the purpose of relieving persons from
the arbitrary acts of judges and quasi-judicial officers. There is a set of procedure for the discipline of
members of the bar separate and apart from the present special civil action.

WHEREFORE, the petition is DISMISSED and the Status quo ordered to be maintained in the
Resolution dated September 22, 1992 is LIFTED and SET ASIDE.

SO ORDERED.

Narvasa, C.J., Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo,
Puno and Vitug, JJ., concur.

Feliciano, J., is on leave.

Separate Opinions

BELLOSILLO, J., concurring:

I agree that the Ombudsman has the authority, under Sec. 24 of R.A.
No. 6770, to preventively suspend any government official or employee administratively charged
before him pending the investigation of the complaint, the reason being that respondent's continued
stay in office may prejudice the prosecution of the case.

However, in the case before us, I am afraid that the facts thus far presented may not provide
adequate basis to reasonably place petitioners under preventive suspension. For, it is not enough to
rule that the Ombudsman has authority to suspend petitioners preventively while the case is in
progress before him. Equally important is the determination whether it is necessary to issue the
preventive suspension under the circumstances. Regretfully, I cannot see any sufficient basis to
justify the preventive suspension. That is why, I go for granting oral argument to the parties so that
we can truthfully determine whether the preventive suspension of respondents are warranted by the
facts. We may be suspending key government officials and employees on the basis merely of
speculations which may not serve the ends of justice but which, on the other hand, deprive them of
their right to due process. The simultaneous preventive suspension of top officials and employees of
the National Center for Mental Health may just disrupt, the hospital's normal operations, much to the
detriment of public service. We may safely assume that it is not easy to replace them in their
respective functions as those substituting them may be taking over for the first time. The proper care
of mental patients may thus be unduly jeopardized and their lives and limbs imperilled.

I would be amenable to holding oral argument to hear the parties if only to have enough factual and
legal bases to justify the preventive suspension of petitioners.

# Separate Opinions

BELLOSILLO, J., concurring:

I agree that the Ombudsman has the authority, under Sec. 24 of R.A.
No. 6770, to preventively suspend any government official or employee administratively charged
before him pending the investigation of the complaint, the reason being that respondent's continued
stay in office may prejudice the prosecution of the case.

However, in the case before us, I am afraid that the facts thus far presented may not provide
adequate basis to reasonably place petitioners under preventive suspension. For, it is not enough to
rule that the Ombudsman has authority to suspend petitioners preventively while the case is in
progress before him. Equally important is the determination whether it is necessary to issue the
preventive suspension under the circumstances. Regretfully, I cannot see any sufficient basis to
justify the preventive suspension. That is why, I go for granting oral argument to the parties so that
we can truthfully determine whether the preventive suspension of respondents are warranted by the
facts. We may be suspending key government officials and employees on the basis merely of
speculations which may not serve the ends of justice but which, on the other hand, deprive them of
their right to due process. The simultaneous preventive suspension of top officials and employees of
the National Center for Mental Health may just disrupt, the hospital's normal operations, much to the
detriment of public service. We may safely assume that it is not easy to replace them in their
respective functions as those substituting them may be taking over for the first time. The proper care
of mental patients may thus be unduly jeopardized and their lives and limbs imperilled.

I would be amenable to holding oral argument to hear the parties if only to have enough factual and
legal bases to justify the preventive suspension of petitioners.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 79094 June 22, 1988

MANOLO P. FULE, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, respondent.

Balagtas P. Ilagan for petitioner.

The Solicitor General for respondent.

MELENCIO-HERRERA, J.:

This is a Petition for Review on certiorari of the Decision of respondent Appellate Court, which affirmed
the judgment of the Regional Trial Court, Lucena City, Branch LIV, convicting petitioner (the accused-
appellant) of Violation of Batas Pambansa Blg. 22 (The Bouncing Checks Law) on the basis of the
Stipulation of Facts entered into between the prosecution and the defense during the pre-trial conference
in the Trial Court. The facts stipulated upon read:

a) That this Court has jurisdiction over the person and subject matter of this case;

b) That the accused was an agent of the Towers Assurance Corporation on or before
January 21, 1981;

c) That on January 21, 1981, the accused issued and made out check No. 26741, dated
January 24, 1981 in the sum of P2,541.05;

d) That the said check was drawn in favor of the complaining witness, Roy Nadera;

e) That the check was drawn in favor of the complaining witness in remittance of
collection;

f) That the said check was presented for payment on January 24, 1981 but the same was
dishonored for the reason that the said checking account was already closed;

g) That the accused Manolo Fule has been properly Identified as the accused party in
this case.

At the hearing of August 23, 1985, only the prosecution presented its evidence consisting of Exhibits "A,"
"B" and "C." At the subsequent hearing on September 17, 1985, petitioner-appellant waived the right to
present evidence and, in lieu thereof, submitted a Memorandum confirming the Stipulation of Facts. The
Trial Court convicted petitioner-appellant.

On appeal, respondent Appellate Court upheld the Stipulation of Facts and affirmed the judgment of
conviction. 1
Hence, this recourse, with petitioner-appellant contending that:

The Honorable Respondent Court of Appeals erred in the decision of the Regional Trial
Court convicting the petitioner of the offense charged, despite the cold fact that the basis
of the conviction was based solely on the stipulation of facts made during the pre-trial on
August 8, 1985, which was not signed by the petitioner, nor by his counsel.

Finding the petition meritorious, we resolved to give due course.

The 1985 Rules on Criminal Procedure, which became effective on January 1, 1985, applicable to this
case since the pre-trial was held on August 8, 1985, provides:

SEC. 4. Pre-trial agreements must be signed. — No agreement or admission made or

entered during the pre-trial conference shall be used in evidence against the accused
unless reduced to writing and signed by him and his counsel. (Rule 118) [Emphasis
supplied]

By its very language, the Rule is mandatory. Under the rule of statutory construction, negative words and
phrases are to be regarded as mandatory while those in the affirmative are merely directory (McGee vs.
Republic, 94 Phil. 820 [1954]). The use of the term "shall" further emphasizes its mandatory character
and means that it is imperative, operating to impose a duty which may be enforced (Bersabal vs.
Salvador, No. L-35910, July 21, 1978, 84 SCRA 176). And more importantly, penal statutes whether
substantive and remedial or procedural are, by consecrated rule, to be strictly applied against the
government and liberally in favor of the accused (People vs. Terrado No. L-23625, November 25, 1983,
125 SCRA 648).

The conclusion is inevitable, therefore, that the omission of the signature of the accused and his counsel,
as mandatorily required by the Rules, renders the Stipulation of Facts inadmissible in evidence. The fact
that the lawyer of the accused, in his memorandum, confirmed the Stipulation of Facts does not cure the
defect because Rule 118 requires both the accused and his counsel to sign the Stipulation of Facts. What
the prosecution should have done, upon discovering that the accused did not sign the Stipulation of
Facts, as required by Rule 118, was to submit evidence to establish the elements of the crime, instead of
relying solely on the supposed admission of the accused in the Stipulation of Facts. Without said
evidence independent of the admission, the guilt of the accused cannot be deemed established beyond
reasonable doubt.

Consequently, under the circumstances obtaining in this case, the ends of justice require that evidence
be presented to determine the culpability of the accused. When a judgment has been entered by consent
of an attorney without special authority, it will sometimes be set aside or reopened (Natividad vs.
Natividad, 51 Phil. 613 [1928]).

WHEREFORE, the judgment of respondent Appellate Court is REVERSED and this case is hereby
ordered RE-OPENED and REMANDED to the appropriate Branch of the Regional Trial Court of Lucena
City, for further reception of evidence.

SO ORDERED.

Yap, C.J., Fernan, Narvasa, Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino
and Medialdea, JJ., concur.

Paras, J., took no part.

Gutierrez, Jr., J., is on leave.

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-35910 July 21, 1978

PURITA BERSABAL, petitioner,

vs.
HONORABLE JUDGE SERAFIN SALVADOR, as Judge of the Court of First Instance of
Caloocan City, Branch XIV, TAN THAT and ONG PIN TEE, respondents.

MAKASIAR, J.:

On March 23, 1972, petitioner Purita Bersabal seeks to annul the orders of respondent Judge of
August 4, 1971, October 30, 1971 and March 15, 1972 and to compel said respondent Judge to
decide petitioner's perfected appeal on the basis of the evidence and records of the case submitted
by the City Court of Caloocan City plus the memorandum already submitted by the petitioner and
respondents.

Since only questions of law were raised therein, the Court of Appeals, on October 13, 1972, issued a
resolution certifying said case to this Court pursuant to Section 17, paragraph (4) of the Judiciary Act
of 1948, as amended.

As found by the Court of Appeals, the facts of this case are as follows:

It appears that private respondents Tan That and Ong Pin Tee filed an ejectment
suit, docketed as Civil Case No. 6926 in the City Court of Caloocan City, against the
petitioner. A decision was rendered by said Court on November 25, 1970, which
decision was appealed by the petitioner to the respondent Court and docketed
therein as Civil Case No. C-2036.

During the pendency of the appeal the respondent court issued on March 23, 1971
an order which reads:

Pursuant to the provisions of Rep. Act No. 6031, the Clerk of Court of
Caloocan City, is hereby directed to transmit to this Court within
fifteen (15) days from receipt hereof the transcripts of stenographic
notes taken down during the hearing of this case before the City
Court of Caloocan City, and likewise, counsels for both parties are
given thirty (30) days from receipt of this order within which to file
their respective memoranda, and thereafter, this case shall be
deemed submitted for decision by this Court.

which order was apparently received by petitioner on April 17, 1971.

The transcript of stenographic notes not having yet been forwarded to the
respondent court, petitioner filed on May 5, 1971 a 'MOTION EX-PARTE TO
 SUBMIT MEMORANDUM WITHIN 30 DAYS FROM RECEIPT OF NOTICE OF
SUBMISSION OF THE TRANSCRIPT OF STENOGRAPHIC NOTES TAKEN
DURING THE HEARING OF THE CASE BEFORE THE CITY COURT OF
CALOOCAN CITY' which was granted by respondent court on May 7, 1971.
However, before the petitioner could receive any such notice from the respondent
court, the respondent Judge issued an order on August 4, 1971 which says:

For failure of the defendant-appellant to prosecute her appeal the

same is hereby ordered DISMISSED with costs against her.

Petitioner filed a motion for reconsideration of the order on September 28, 1971,
citing as a ground the granting of his ex-parte motion to submit memorandum within
30 days from notice of the submission of the stenographic notes taken before the
City Court. Private respondents filed their opposition to the motion on September
30,1971. In the meantime, on October 20,1971, petitioner filed her memorandum
dated October 18, 1971. On October 30, 1971 the respondent Court denied the
motion for reconsideration. Then on January 25, 1972, petitioner filed a motion for
leave to file second motion for reconsideration which was likewise denied by the
respondent court on March 15, 1972. Hence this petition.

The sole inquiry in the case at bar can be stated thus: Whether, in the light of the provisions of the
second paragraph of Section 45 of Republic Act No. 296, as amended by R.A. No. 6031, the mere
failure of an appellant to submit on nine the memorandum mentioned in the same paragraph would
empower the Court of First Instance to dismiss the appeal on the ground of failure to Prosecute; or,
whether it is mandatory upon said Court to proceed to decide the appealed case on the basis of the
evidence and records transmitted to it, the failure of the appellant to submit a memorandum on time
notwithstanding.

The second paragraph of Section 45 of R.A. No. 296, otherwise known as the Philippine Judiciary
Act of 1948, as amended by R.A. No. 6031 provides, in part, as follows:

Courts of First Instance shall decide such appealed cases on the basis of the
evidence and records transmitted from the city or municipal courts: Provided, That
the parties may submit memoranda and/or brief with oral argument if so requested ...
. (Emphasis supplied).

The foregoing provision is clear and leaves no room for doubt. It cannot be interpreted otherwise
than that the submission of memoranda is optional on the part of the parties. Being optional on the
part of the parties, the latter may so choose to waive submission of the memoranda. And as a logical
concomitant of the choice given to the Parties, the Court cannot dismiss the appeal of the party
waiving the submission of said memorandum the appellant so chooses not to submit the
memorandum, the Court of First Instance is left with no alternative but to decide the case on the
basis of the evidence and records transmitted from the city or municipal courts. In other words, the
Court is not empowered by law to dismiss the appeal on the mere failure of an appellant to submit
his memorandum, but rather it is the Court's mandatory duty to decide the case on the basis of the
available evidence and records transmitted to it.

As a general rule, the word "may" when used in a statute is permissive only and operates to confer
discretion; while the word "shall" is imperative, operating to impose a duty which may be enforced
(Dizon vs. Encarnacion, L-18615, Dec. 24, 1963, 9 SCRA 714, 716-717). The implication is that the
Court is left with no choice but to decide the appealed case either on the basis of the evidence and
records transmitted to it, or on the basis of the latter plus memoranda and/or brief with oral argument
duly submitted and/or made on request.

Moreover, memoranda, briefs and oral arguments are not essential requirements. They may be
submitted and/or made only if so requested.

Finally, a contrary interpretation would be unjust and dangerous as it may defeat the litigant's right to
appeal granted to him by law. In the case of Republic vs. Rodriguez
(L-26056, May 29, 1969, 28 SCRA 378) this Court underscored "the need of proceeding with caution
so that a party may not be deprived of its right to appeal except for weighty reasons." Courts should
heed the rule in Municipality of Tiwi, Albay vs. Cirujales
(L-37520, Dec. 26, 1973, 54 SCRA 390, 395), thus:

The appellate court's summary dismissal of the appeal even before receipt of the
records of the appealed case as ordered by it in a prior mandamus case must be set
aside as having been issued precipitously and without an opportunity to consider and
appreciate unavoidable circumstances of record not attributable to petitioners that
caused the delay in the elevation of the records of the case on appeal.

In the instant case, no notice was received by petitioner about the submission of the transcript of the
stenographic notes, so that his 30-day period to submit his memorandum would commence to run.
Only after the expiration of such period can the respondent Judge act on the case by deciding it on
the merits, not by dismissing the appeal of petitioner.

WHEREFORE, THE CHALLENGED ORDERS OF RESPONDENT JUDGE DATED AUGUST 4,

1971, OCTOBER 30, 1971 AND MARCH 15, 1971 ARE HEREBY SET ASIDE AS NULL AND VOID
AND THE RESPONDENT COURT IS HEREBY DIRECTED TO DECIDE CIVIL CASE NO. C-2036
ON THE MERITS. NO COSTS.

Muñoz Palma, Fernandez and Guerrero, JJ., concur.

Separate Opinions

TEEHANKEE, J, concurring:

I concur with the setting aside of the questioned dismissal of petitioner's appeal on the ground that
the record shows quite clearly that there was no failure on part of petitioner-appellant to prosecute
her appeal in respondent judge's court. Petitioner had been granted in respondent judge's Order of
May 7, 1971, 30 days from notice of submission of the transcripts within which to file her
memorandum on appeal, yet her appeal was dismissed per his Order of August 4, 1971 for alleged
failure to prosecute (by failure to file the memorandum) even before she had received any such
notice. Upon receipt of the dismissal order, petitioner had promptly moved for reconsideration and
filed her memorandum on appeal.
I am not prepared at this stage to concur with the ratio decidendi of the decision penned by Mr.
Justice Makasiar that the Court is not empowered by law to dismiss the appeal on the mere failure of
an appellant to submit his memorandum, but rather it is the Court's mandatory duty to decide the
case on the basis of the available evidence and records transmitted to it." I entertain serious doubts
about such pronouncement, once when the court of first instance "requests" the party-appellant to
submit a memorandum or brief on appeal under the provisions of Republic Act No. 6031 amending
section 45 of Republic Act No. 296, such "request" is tantamount to a requirement for the proper
prosecution of the appeal; thus, when the appellant willfuly fails to file such memorandum or brief,
the judge should be empowered to dismiss the appeal, applying suppletorily the analogous
provisions of Rule 50, section 1 for dismissal of appeal by the higher appellate courts and taking into
account that Rule 40, section 9 of the Rules of Court now expressly authorizes the court of first
instance to dismiss an appeal before it "for failure to prosecute."

Separate Opinions

TEEHANKEE, J, Concurring:

I concur with the setting aside of the questioned dismissal of petitioner's appeal on the ground that
the record shows quite clearly that there was no failure on part of petitioner-appellant to prosecute
her appeal in respondent judge's court. Petitioner had been granted in respondent judge's Order of
May 7, 1971, 30 days from notice of submission of the transcripts within which to file her
memorandum on appeal, yet her appeal was dismissed per his Order of August 4, 1971 for alleged
failure to prosecute (by failure to file the memorandum) even before she had received any such
notice. Upon receipt of the dismissal order, petitioner had promptly moved for reconsideration and
filed her memorandum on appeal.

I am not prepared at this stage to concur with the ratio decidendi of the decision penned by Mr.
Justice Makasiar that the Court is not empowered by law to dismiss the appeal on the mere failure of
an appellant to submit his memorandum, but rather it is the Court's mandatory duty to decide the
case on the basis of the available evidence and records transmitted to it." I entertain serious doubts
about such pronouncement, once when the court of first instance "requests" the party-appellant to
submit a memorandum or brief on appeal under the provisions of Republic Act No. 6031 amending
section 45 of Republic Act No. 296, such "request" is tantamount to a requirement for the proper
prosecution of the appeal; thus, when the appellant willfuly fails to file such memorandum or brief,
the judge should be empowered to dismiss the appeal, applying suppletorily the analogous
provisions of Rule 50, section 1 for dismissal of appeal by the higher appellate courts and taking into
account that Rule 40, section 9 of the Rules of Court now expressly authorizes the court of first
instance to dismiss an appeal before it "for failure to prosecute."
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 167982 August 13, 2008

OFFICE OF THE OMBUDSMAN, petitioner,

vs.
MERCEDITAS DE SAHAGUN, MANUELA T. WAQUIZ and RAIDIS J. BASSIG, respondent.*

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the
Decision1 dated April 28, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 78008 which set aside the
Orders dated March 10, 2003 and June 24, 2003 of the petitioner Office of the Ombudsman in OMB-
ADM-0-00-0721.

The material antecedents are as follows:

On November 13, 1992, respondent Raidis J. Bassig, Chief of the Research and Publications Division of
the Intramuros Administration, submitted a Memorandum to then Intramuros Administrator Edda V.
Henson (Henson) recommending that Brand Asia, Ltd. be commissioned to produce a video documentary
for a television program, as well implement a media plan and marketing support services for Intramuros.

On November 17, 1992, the Bids and Awards Committee (BAC) of the Intramuros Administration,
composed of respondent Merceditas de Sahagun, as Chairman, with respondent Manuela T. Waquiz and
Dominador C. Ferrer, Jr. (Ferrer), as members, submitted a recommendation to Henson for the approval
of the award of said contract to Brand Asia, Ltd. On the same day, Henson approved the
recommendation and issued a Notice of Award to Brand Asia, Ltd.

On November 23, 1992, a contract of service to produce a video documentary on Intramuros for TV
program airing was executed between Henson and Brand Asia, Ltd. On December 1, 1992, a Notice to
Proceed was issued to Brand Asia, Ltd.

On June 2, 1993, the BAC, with Augusto P. Rustia (Rustia) as additional member, recommended to
Henson the approval of the award of contract for print collaterals to Brand Asia, Ltd. On the same day,
Henson approved the recommendation and issued a Notice of Award/Notice to Proceed to Brand Asia,
Ltd.

On June 22, 1993, a contract of services to produce print collaterals was entered between Henson and
Brand Asia, Ltd.

On March 7, 1995, an anonymous complaint was filed with the Presidential Commission Against Graft
and Corruption (PGAC) against Henson in relation to the contracts entered into with Brand Asia, Ltd.

On November 30, 1995, Henson was dismissed from the service by the Office of the President upon
recommendation of the PGAC which found that the contracts were entered into without the required
public bidding and in violation of Section 3 (a) and (e) of Republic Act (R.A.) No. 3019, or the Anti-Graft
and Corrupt Practices Act.
On August 8, 1996, an anonymous complaint was filed with the Ombudsman against the BAC in relation
to the latter’s participation in the contracts with Brand Asia, Ltd. for which Henson was dismissed from
service.

On September 5, 2000, Fact-Finding Intelligence Bureau (FFIB) filed criminal and administrative charges
against respondents, along with Ferrer and Rustia, for violation of Section 3 (a) and (c) of R.A. No. 3019
in relation to Section 1 of Executive Order No. 302 and grave misconduct, conduct grossly prejudicial to
the best interest of the service and gross violation of Rules and Regulations pursuant to the
Administrative Code of 1987, docketed as OMB-0-00-1411 and OMB-ADM-0-00-0721,
respectively.2 OMB-0-00-1411 was dismissed on February 27, 2002 for lack of probable cause.3

In his proposed Decision4 dated June 19, 2002, Graft Investigation Officer II Joselito P. Fangon
recommended the dismissal of OMB-ADM-0-00-0721.

However, then Ombudsman Simeon V. Marcelo disapproved the recommendation. In an Order 5 dated
March 10, 2003, he held that there was substantial evidence to hold respondents administratively liable
since the contracts awarded to Brand Asia, Ltd. failed to go through the required procedure for public
bidding under Executive Order No. 301 dated July 26, 1987. Respondents and Ferrer were found guilty of
grave misconduct and dismissed from service. Rustia was found guilty of simple misconduct and
suspended for six months without pay.

On March 17, 2003, respondents, along with Rustia, filed a Motion for Reconsideration. 6

On June 24, 2003, Ombudsman Marcelo issued an Order7 partially granting the motion for
reconsideration. Respondents and Ferrer were found guilty of the lesser offense of simple misconduct
and suspended for six months without pay. Rustia's suspension was reduced to three months.

Dissatisfied, respondents filed a Petition for Review8 with the CA assailing the Orders dated March 10,
2003 and June 24, 2003 of the Ombudsman.

On April 28, 2005, the CA rendered a Decision9 setting aside the Orders dated March 10, 2003 and June
24, 2003 of the Ombudsman. The CA held that respondents may no longer be prosecuted since the
complaint was filed more than seven years after the imputed acts were committed which was beyond the
one year period provided for by Section 20 (5) of Republic Act (R.A.) No. 6770, otherwise known as "The
Ombudsman Act of 1989"; and that the nature of the function of the Ombudsman was purely
recommendatory and it did not have the power to penalize erring government officials and employees.
The CA relied on the following statement made by the Court in Tapiador v. Office of the Ombudsman,10 to
wit:

x x x Besides, assuming arguendo, that petitioner [Tapiador] was administratively liable, the
Ombudsman has no authority to directly dismiss the petitioner from the government
service, more particularly from his position in the BID. Under Section 13, subparagraph 3, of
Article XI of the 1987 Constitution, the Ombudsman can only "recommend" the removal of
the public official or employee found to be at fault, to the public official
concerned.11 (Emphasis supplied)

Hence, the present petition raising the following issues (1) whether Section 20 (5) of R.A. No. 6770
prohibits administrative investigations in cases filed more than one year after commission, and (2)
whether the Ombudsman only has recommendatory, not punitive, powers against erring government
officials and employees.

The Court rules in favor of the petitioner.

The issues in the present case are settled by precedents.

On the first issue, well-entrenched is the rule that administrative offenses do not
prescribe.12 Administrative offenses by their very nature pertain to the character of public officers and
employees. In disciplining public officers and employees, the object sought is not the punishment of the
officer or employee but the improvement of the public service and the preservation of the public’s faith
and confidence in our government.13

Respondents insist that Section 20 (5) of R.A. No. 6770, to wit:

SEC. 20. Exceptions. – The Office of the Ombudsman may not conduct the necessary
investigation of any administrative act or omission complained of if it believes that:

xxx

(5) The complaint was filed after one year from the occurrence of the act or omission complained
of. (Emphasis supplied)

proscribes the investigation of any administrative act or omission if the complaint was filed after one year
from the occurrence of the complained act or omission.

In Melchor v. Gironella,14 the Court held that the period stated in Section 20(5) of R.A. No. 6770 does not
refer to the prescription of the offense but to the discretion given to the Ombudsman on whether it would
investigate a particular administrative offense. The use of the word "may" in the provision is construed as
permissive and operating to confer discretion.15 Where the words of a statute are clear, plain and free
from ambiguity, they must be given their literal meaning and applied without attempted interpretation. 16

In Filipino v. Macabuhay,17 the Court interpreted Section 20 (5) of R.A. No. 6770 in this manner:

Petitioner argues that based on the abovementioned provision [Section 20(5) of RA 6770)],
respondent's complaint is barred by prescription considering that it was filed more than one year
after the alleged commission of the acts complained of.

Petitioner's argument is without merit.

The use of the word "may" clearly shows that it is directory in nature and not mandatory as
petitioner contends. When used in a statute, it is permissive only and operates to confer
discretion; while the word "shall" is imperative, operating to impose a duty which may be
enforced. Applying Section 20(5), therefore, it is discretionary upon the Ombudsman whether
or not to conduct an investigation on a complaint even if it was filed after one year from
the occurrence of the act or omission complained of. In fine, the complaint is not barred
by prescription.18 (Emphasis supplied)

The declaration of the CA in its assailed decision that while as a general rule the word "may" is directory,
the negative phrase "may not" is mandatory in tenor; that a directory word, when qualified by the word
"not," becomes prohibitory and therefore becomes mandatory in character, is not plausible. It is not
supported by jurisprudence on statutory construction.

As the Court recently held in Office of the Ombudsman v. Court of Appeals,19 Section 20 of R.A. No. 6770
has been clarified by Administrative Order No. 17,20 which amended Administrative Order No. 07,
otherwise known as the Rules of Procedure of the Office of the Ombudsman. Section 4, Rule III21 of the
amended Rules of Procedure of the Office of the Ombudsman reads:
 Section 4. Evaluation. - Upon receipt of the complaint, the same shall be evaluated to determine
whether the same may be:

a) dismissed outright for any grounds stated under Section 20 of Republic Act No. 6770,
provided, however, that the dismissal thereof is not mandatory and shall be discretionary
on the part of the Ombudsman or the Deputy Ombudsman concerned;

b) treated as a grievance/request for assistance which may be referred to the Public Assistance
Bureau, this Office, for appropriate action under Section 2, Rule IV of this Rules;

c) referred to other disciplinary authorities under paragraph 2, Section 23, R.A. 6770 for the
taking of appropriate administrative proceedings;

d) referred to the appropriate office/agency or official for the conduct of further fact-finding
investigation; or

e) docketed as an administrative case for the purpose of administrative adjudication by the Office
of the Ombudsman. (Emphasis supplied)

It is, therefore, discretionary upon the Ombudsman whether or not to conduct an investigation of a
complaint even if it was filed after one year from the occurrence of the act or omission complained of.

Thus, while the complaint herein was filed only on September 5, 2000, or more than seven years after the
commission of the acts imputed against respondents in November 1992 and June 1993, it was within the
authority of the Ombudsman to conduct the investigation of the subject complaint.

On the second issue, the authority of the Ombudsman to determine the administrative liability of a public
official or employee, and to direct and compel the head of the office or agency concerned to implement
the penalty imposed is likewise settled.

In Ledesma v. Court of Appeals,22 the Court has ruled that the statement in Tapiador that made reference
to the power of the Ombudsman to impose an administrative penalty was merely an obiter dictum and
could not be cited as a doctrinal declaration of this Court, thus:

x x x [A] cursory reading of Tapiador reveals that the main point of the case was the failure of the
complainant therein to present substantial evidence to prove the charges of the administrative
case. The statement that made reference to the power of the Ombudsman is, at best,
merely an obiter dictum and, as it is unsupported by sufficient explanation, is susceptible to
varying interpretations, as what precisely is before us in this case. Hence, it cannot be cited as
a doctrinal declaration of this Court nor is it safe from judicial examination.23 (Emphasis
supplied)

In Estarija v. Ranada,24 the Court reiterated its pronouncements in Ledesma and categorically stated:

x x x [T]he Constitution does not restrict the powers of the Ombudsman in Section 13, Article XI
of the 1987 Constitution, but allows the Legislature to enact a law that would spell out the powers
of the Ombudsman. Through the enactment of Rep. Act No. 6770, specifically Section 15, par. 3,
the lawmakers gave the Ombudsman such powers to sanction erring officials and employees,
except members of Congress, and the Judiciary. To conclude, we hold that Sections 15, 21, 22
and 25 of Republic Act No. 6770 are constitutionally sound. The powers of the Ombudsman
are not merely recommendatory. His office was given teeth to render this constitutional body
not merely functional but also effective. Thus, we hold that under Republic Act No. 6770 and
the 1987 Constitution, the Ombudsman has the constitutional power to directly remove
 from government service an erring public official other than a member of Congress and the
Judiciary.25 (Emphasis supplied)

The power of the Ombudsman to directly impose administrative sanctions has been repeatedly reiterated
in the subsequent cases of Barillo v. Gervasio,26 Office of the Ombudsman v. Madriaga,27 Office of the
Ombudsman v. Court of Appeals,28 Balbastro v. Junio,29 Commission on Audit, Regional Office No. 13,
Butuan City v. Hinampas,30 Office of the Ombudsman v. Santiago,31 Office of the Ombudsman v.
Lisondra,32 and most recently in Deputy Ombudsman for the Visayas v. Abugan33 and continues to be the
controlling doctrine.

In fine, it is already well-settled that the Ombudsman's power as regards the administrative penalty to be
imposed on an erring public officer or employee is not merely recommendatory. The Ombudsman has the
power to directly impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a
public officer or employee, other than a member of Congress and the Judiciary, found to be at fault, within
the exercise of its administrative disciplinary authority as provided in the Constitution, R.A. No. 6770, as
well as jurisprudence. This power gives the said constitutional office teeth to render it not merely
functional, but also effective.34

Thus, the CA committed a reversible error in holding that the case had already prescribed and that
the Ombudsman does not have the power to penalize erring government officials and employees.

WHEREFORE, the petition is GRANTED. The Decision dated April 28, 2005 of the Court of Appeals in
CA-G.R. SP No. 78008 is REVERSED and SET ASIDE. The Order dated June 24, 2003 of the Office of
the Ombudsman is REINSTATED.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MINITA V. CHICO-NAZARIO ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

RUBEN T. REYES
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.
 CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify
that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 117188 August 7, 1997

LOYOLA GRAND VILLAS HOMEOWNERS (SOUTH) ASSOCIATION, INC., petitioner,

vs.
HON. COURT OF APPEALS, HOME INSURANCE AND GUARANTY CORPORATION, EMDEN
ENCARNACION and HORATIO AYCARDO, respondents.

ROMERO, J.:

May the failure of a corporation to file its by-laws within one month from the date of its incorporation,
as mandated by Section 46 of the Corporation Code, result in its automatic dissolution?

This is the issue raised in this petition for review on certiorari of the Decision1 of the Court of Appeals
affirming the decision of the Home Insurance and Guaranty Corporation (HIGC). This quasi-judicial
body recognized Loyola Grand Villas Homeowners Association (LGVHA) as the sole homeowners'
association in Loyola Grand Villas, a duly registered subdivision in Quezon City and Marikina City
that was owned and developed by Solid Homes, Inc. It revoked the certificates of registration issued
to Loyola Grand Villas homeowners (North) Association Incorporated (the North Association for
brevity) and Loyola Grand Villas Homeowners (South) Association Incorporated (the South
Association).

LGVHAI was organized on February 8, 1983 as the association of homeowners and residents of the
Loyola Grand Villas. It was registered with the Home Financing Corporation, the predecessor of
herein respondent HIGC, as the sole homeowners' organization in the said subdivision under
Certificate of Registration No. 04-197. It was organized by the developer of the subdivision and its
first president was Victorio V. Soliven, himself the owner of the developer. For unknown reasons,
however, LGVHAI did not file its corporate by-laws.

Sometime in 1988, the officers of the LGVHAI tried to register its by-laws. They failed to do so. 2 To
the officers' consternation, they discovered that there were two other organizations within the
subdivision — the North Association and the South Association. According to private respondents, a
non-resident and Soliven himself, respectively headed these associations. They also discovered that
these associations had five (5) registered homeowners each who were also the incorporators,
directors and officers thereof. None of the members of the LGVHAI was listed as member of the
North Association while three (3) members of LGVHAI were listed as members of the South
Association.3 The North Association was registered with the HIGC on February 13, 1989 under
Certificate of Registration No. 04-1160 covering Phases West II, East III, West III and East IV. It
submitted its by-laws on December 20, 1988.

In July, 1989, when Soliven inquired about the status of LGVHAI, Atty. Joaquin A. Bautista, the head
of the legal department of the HIGC, informed him that LGVHAI had been automatically dissolved for
two reasons. First, it did not submit its by-laws within the period required by the Corporation Code
and, second, there was non-user of corporate charter because HIGC had not received any report on
the association's activities. Apparently, this information resulted in the registration of the South
Association with the HIGC on July 27, 1989 covering Phases West I, East I and East II. It filed its by-
laws on July 26, 1989.

These developments prompted the officers of the LGVHAI to lodge a complaint with the HIGC. They
questioned the revocation of LGVHAI's certificate of registration without due notice and hearing and
concomitantly prayed for the cancellation of the certificates of registration of the North and South
Associations by reason of the earlier issuance of a certificate of registration in favor of LGVHAI.

On January 26, 1993, after due notice and hearing, private respondents obtained a favorable ruling
from HIGC Hearing Officer Danilo C. Javier who disposed of HIGC Case No. RRM-5-89 as follows:

WHEREFORE, judgment is hereby rendered recognizing the Loyola Grand Villas

Homeowners Association, Inc., under Certificate of Registration No. 04-197 as the duly
registered and existing homeowners association for Loyola Grand Villas homeowners, and
declaring the Certificates of Registration of Loyola Grand Villas Homeowners (North)
Association, Inc. and Loyola Grand Villas Homeowners (South) Association, Inc. as hereby
revoked or cancelled; that the receivership be terminated and the Receiver is hereby ordered
to render an accounting and turn-over to Loyola Grand Villas Homeowners Association, Inc.,
all assets and records of the Association now under his custody and possession.

The South Association appealed to the Appeals Board of the HIGC. In its Resolution of September
8, 1993, the Board 4 dismissed the appeal for lack of merit.

Rebuffed, the South Association in turn appealed to the Court of Appeals, raising two issues. First,
whether or not LGVHAI's failure to file its by-laws within the period prescribed by Section 46 of the
Corporation Code resulted in the automatic dissolution of LGVHAI. Second, whether or not two
homeowners' associations may be authorized by the HIGC in one "sprawling subdivision." However,
in the Decision of August 23, 1994 being assailed here, the Court of Appeals affirmed the Resolution
of the HIGC Appeals Board.

In resolving the first issue, the Court of Appeals held that under the Corporation Code, a private
corporation commences to have corporate existence and juridical personality from the date the
Securities and Exchange Commission (SEC) issues a certificate of incorporation under its official
seal. The requirement for the filing of by-laws under Section 46 of the Corporation Code within one
month from official notice of the issuance of the certificate of incorporation presupposes that it is
already incorporated, although it may file its by-laws with its articles of incorporation. Elucidating on
the effect of a delayed filing of by-laws, the Court of Appeals said:

We also find nothing in the provisions cited by the petitioner, i.e., Section 46 and 22,
Corporation Code, or in any other provision of the Code and other laws which provide or at
least imply that failure to file the by-laws results in an automatic dissolution of the
corporation. While Section 46, in prescribing that by-laws must be adopted within the period
prescribed therein, may be interpreted as a mandatory provision, particularly because of the
use of the word "must," its meaning cannot be stretched to support the argument that
automatic dissolution results from non-compliance.

We realize that Section 46 or other provisions of the Corporation Code are silent on the
result of the failure to adopt and file the by-laws within the required period. Thus, Section 46
and other related provisions of the Corporation Code are to be construed with Section 6 (1)
of P.D. 902-A. This section empowers the SEC to suspend or revoke certificates of
 registration on the grounds listed therein. Among the grounds stated is the failure to file by-
laws (see also II Campos: The Corporation Code, 1990 ed., pp. 124-125). Such suspension
or revocation, the same section provides, should be made upon proper notice and hearing.
Although P.D. 902-A refers to the SEC, the same principles and procedures apply to the
public respondent HIGC as it exercises its power to revoke or suspend the certificates of
registration or homeowners association. (Section 2 [a], E.O. 535, series 1979, transferred the
powers and authorities of the SEC over homeowners associations to the HIGC.)

We also do not agree with the petitioner's interpretation that Section 46, Corporation Code
prevails over Section 6, P.D. 902-A and that the latter is invalid because it contravenes the
former. There is no basis for such interpretation considering that these two provisions are not
inconsistent with each other. They are, in fact, complementary to each other so that one
cannot be considered as invalidating the other.

The Court of Appeals added that, as there was no showing that the registration of LGVHAI had been
validly revoked, it continued to be the duly registered homeowners' association in the Loyola Grand
Villas. More importantly, the South Association did not dispute the fact that LGVHAI had been
organized and that, thereafter, it transacted business within the period prescribed by law.

On the second issue, the Court of Appeals reiterated its previous ruling 5 that the HIGC has the
authority to order the holding of a referendum to determine which of two contending associations
should represent the entire community, village or subdivision.

Undaunted, the South Association filed the instant petition for review on certiorari. It elevates as sole
issue for resolution the first issue it had raised before the Court of Appeals, i.e., whether or not the
LGVHAI's failure to file its by-laws within the period prescribed by Section 46 of the Corporation
Code had the effect of automatically dissolving the said corporation.

Petitioner contends that, since Section 46 uses the word "must" with respect to the filing of by-laws,
noncompliance therewith would result in "self-extinction" either due to non-occurrence of a
suspensive condition or the occurrence of a resolutory condition "under the hypothesis that (by) the
issuance of the certificate of registration alone the corporate personality is deemed already formed."
It asserts that the Corporation Code provides for a "gradation of violations of requirements." Hence,
Section 22 mandates that the corporation must be formally organized and should commence
transaction within two years from date of incorporation. Otherwise, the corporation would be deemed
dissolved. On the other hand, if the corporation commences operations but becomes continuously
inoperative for five years, then it may be suspended or its corporate franchise revoked.

Petitioner concedes that Section 46 and the other provisions of the Corporation Code do not provide
for sanctions for non-filing of the by-laws. However, it insists that no sanction need be provided
"because the mandatory nature of the provision is so clear that there can be no doubt about its being
an essential attribute of corporate birth." To petitioner, its submission is buttressed by the facts that
the period for compliance is "spelled out distinctly;" that the certification of the SEC/HIGC must show
that the by-laws are not inconsistent with the Code, and that a copy of the by-laws "has to be
attached to the articles of incorporation." Moreover, no sanction is provided for because "in the first
place, no corporate identity has been completed." Petitioner asserts that "non-provision for remedy
or sanction is itself the tacit proclamation that non-compliance is fatal and no corporate existence
had yet evolved," and therefore, there was "no need to proclaim its demise." 6 In a bid to convince
the Court of its arguments, petitioner stresses that:

. . . the word MUST is used in Sec. 46 in its universal literal meaning and corollary human
implication — its compulsion is integrated in its very essence — MUST is always enforceable
 by the inevitable consequence — that is, "OR ELSE". The use of the word MUST in Sec. 46
is no exception — it means file the by-laws within one month after notice of issuance of
certificate of registration OR ELSE. The OR ELSE, though not specified, is inextricably a part
of MUST . Do this or if you do not you are "Kaput". The importance of the by-laws to
corporate existence compels such meaning for as decreed the by-laws is "the government"
of the corporation. Indeed, how can the corporation do any lawful act as such without by-
laws. Surely, no law is indeed to create chaos. 7

Petitioner asserts that P.D. No. 902-A cannot exceed the scope and power of the Corporation Code
which itself does not provide sanctions for non-filing of by-laws. For the petitioner, it is "not proper to
assess the true meaning of Sec. 46 . . . on an unauthorized provision on such matter contained in
the said decree."

In their comment on the petition, private respondents counter that the requirement of adoption of by-
laws is not mandatory. They point to P.D. No. 902-A as having resolved the issue of whether said
requirement is mandatory or merely directory. Citing Chung Ka Bio v. Intermediate Appellate
Court, 8 private respondents contend that Section 6(I) of that decree provides that non-filing of by-
laws is only a ground for suspension or revocation of the certificate of registration of corporations
and, therefore, it may not result in automatic dissolution of the corporation. Moreover, the adoption
and filing of by-laws is a condition subsequent which does not affect the corporate personality of a
corporation like the LGVHAI. This is so because Section 9 of the Corporation Code provides that the
corporate existence and juridical personality of a corporation begins from the date the SEC issues a
certificate of incorporation under its official seal. Consequently, even if the by-laws have not yet been
filed, a corporation may be considered a de facto corporation. To emphasize the fact the LGVHAI
was registered as the sole homeowners' association in the Loyola Grand Villas, private respondents
point out that membership in the LGVHAI was an "unconditional restriction in the deeds of sale
signed by lot buyers."

In its reply to private respondents' comment on the petition, petitioner reiterates its argument that the
word " must" in Section 46 of the Corporation Code is mandatory. It adds that, before the ruling
in Chung Ka Bio v. Intermediate Appellate Court could be applied to this case, this Court must first
resolve the issue of whether or not the provisions of P.D. No. 902-A prescribing the rules and
regulations to implement the Corporation Code can "rise above and change" the substantive
provisions of the Code.

The pertinent provision of the Corporation Code that is the focal point of controversy in this case
states:

Sec. 46. Adoption of by-laws. — Every corporation formed under this Code, must within one
(1) month after receipt of official notice of the issuance of its certificate of incorporation by the
Securities and Exchange Commission, adopt a code of by-laws for its government not
inconsistent with this Code. For the adoption of by-laws by the corporation, the affirmative
vote of the stockholders representing at least a majority of the outstanding capital stock, or of
at least a majority of the members, in the case of non-stock corporations, shall be necessary.
The by-laws shall be signed by the stockholders or members voting for them and shall be
kept in the principal office of the corporation, subject to the stockholders or members voting
for them and shall be kept in the principal office of the corporation, subject to inspection of
the stockholders or members during office hours; and a copy thereof, shall be filed with the
Securities and Exchange Commission which shall be attached to the original articles of
incorporation.
 Notwithstanding the provisions of the preceding paragraph, by-laws may be adopted and
filed prior to incorporation; in such case, such by-laws shall be approved and signed by all
the incorporators and submitted to the Securities and Exchange Commission, together with
the articles of incorporation.

In all cases, by-laws shall be effective only upon the issuance by the Securities and
Exchange Commission of a certification that the by-laws are not inconsistent with this Code.

The Securities and Exchange Commission shall not accept for filing the by-laws or any
amendment thereto of any bank, banking institution, building and loan association, trust
company, insurance company, public utility, educational institution or other special
corporations governed by special laws, unless accompanied by a certificate of the
appropriate government agency to the effect that such by-laws or amendments are in
accordance with law.

As correctly postulated by the petitioner, interpretation of this provision of law begins with the
determination of the meaning and import of the word "must" in this section Ordinarily, the word
"must" connotes an imperative act or operates to impose a duty which may be enforced. 9 It is
synonymous with "ought" which connotes compulsion or mandatoriness. 10 However, the word "must"
in a statute, like "shall," is not always imperative. It may be consistent with an exercise of discretion.
In this jurisdiction, the tendency has been to interpret "shall" as the context or a reasonable
construction of the statute in which it is used demands or requires. 11 This is equally true as regards
the word "must." Thus, if the languages of a statute considered as a whole and with due regard to its
nature and object reveals that the legislature intended to use the words "shall" and "must" to be
directory, they should be given that meaning.12

In this respect, the following portions of the deliberations of the Batasang Pambansa No. 68 are
illuminating:

MR. FUENTEBELLA. Thank you, Mr. Speaker.

On page 34, referring to the adoption of by-laws, are we made to understand here, Mr.
Speaker, that by-laws must immediately be filed within one month after the issuance? In
other words, would this be mandatory or directory in character?

MR. MENDOZA. This is mandatory.

MR. FUENTEBELLA. It being mandatory, Mr. Speaker, what would be the effect of the
failure of the corporation to file these by-laws within one month?

MR. MENDOZA. There is a provision in the latter part of the Code which identifies and
describes the consequences of violations of any provision of this Code. One such
consequences is the dissolution of the corporation for its inability, or perhaps, incurring
certain penalties.

MR. FUENTEBELLA. But it will not automatically amount to a dissolution of the corporation
by merely failing to file the by-laws within one month. Supposing the corporation was late,
say, five days, what would be the mandatory penalty?

MR. MENDOZA. I do not think it will necessarily result in the automatic or ipso
facto dissolution of the corporation. Perhaps, as in the case, as you suggested, in the case of
 El Hogar Filipino where a quo warranto action is brought, one takes into account the gravity
of the violation committed. If the by-laws were late — the filing of the by-laws were late by,
perhaps, a day or two, I would suppose that might be a tolerable delay, but if they are
delayed over a period of months — as is happening now — because of the absence of a
clear requirement that by-laws must be completed within a specified period of time, the
corporation must suffer certain consequences. 13

This exchange of views demonstrates clearly that automatic corporate dissolution for failure to file
the by-laws on time was never the intention of the legislature. Moreover, even without resorting to
the records of deliberations of the Batasang Pambansa, the law itself provides the answer to the
issue propounded by petitioner.

Taken as a whole and under the principle that the best interpreter of a statute is the statute itself
(optima statuli interpretatix est ipsum statutum), 14 Section 46 aforequoted reveals the legislative
intent to attach a directory, and not mandatory, meaning for the word "must" in the first sentence
thereof. Note should be taken of the second paragraph of the law which allows the filing of the by-
laws even prior to incorporation. This provision in the same section of the Code rules out mandatory
compliance with the requirement of filing the by-laws "within one (1) month after receipt of official
notice of the issuance of its certificate of incorporation by the Securities and Exchange Commission."
It necessarily follows that failure to file the by-laws within that period does not imply the "demise" of
the corporation. By-laws may be necessary for the "government" of the corporation but these are
subordinate to the articles of incorporation as well as to the Corporation Code and related
statutes.15 There are in fact cases where by-laws are unnecessary to corporate existence or to the
valid exercise of corporate powers, thus:

In the absence of charter or statutory provisions to the contrary, by-laws are not necessary
either to the existence of a corporation or to the valid exercise of the powers conferred upon
it, certainly in all cases where the charter sufficiently provides for the government of the
body; and even where the governing statute in express terms confers upon the corporation
the power to adopt by-laws, the failure to exercise the power will be ascribed to mere
nonaction which will not render void any acts of the corporation which would otherwise be
valid. 16 (Emphasis supplied.)

As Fletcher aptly puts it:

It has been said that the by-laws of a corporation are the rule of its life, and that until by-laws
have been adopted the corporation may not be able to act for the purposes of its creation,
and that the first and most important duty of the members is to adopt them. This would seem
to follow as a matter of principle from the office and functions of by-laws. Viewed in this light,
the adoption of by-laws is a matter of practical, if not one of legal, necessity. Moreover, the
peculiar circumstances attending the formation of a corporation may impose the obligation to
adopt certain by-laws, as in the case of a close corporation organized for specific purposes.
And the statute or general laws from which the corporation derives its corporate existence
may expressly require it to make and adopt by-laws and specify to some extent what they
shall contain and the manner of their adoption. The mere fact, however, of the existence of
power in the corporation to adopt by-laws does not ordinarily and of necessity make the
exercise of such power essential to its corporate life, or to the validity of any of its acts. 17

Although the Corporation Code requires the filing of by-laws, it does not expressly provide for the
consequences of the non-filing of the same within the period provided for in Section 46. However,
such omission has been rectified by Presidential Decree No. 902-A, the pertinent provisions on the
jurisdiction of the SEC of which state:
 Sec. 6. In order to effectively exercise such jurisdiction, the Commission shall possess the
following powers:

xxx xxx xxx

(1) To suspend, or revoke, after proper notice and hearing, the franchise or certificate of
registration of corporations, partnerships or associations, upon any of the grounds provided
by law, including the following:

xxx xxx xxx

5. Failure to file by-laws within the required period;

xxx xxx xxx

In the exercise of the foregoing authority and jurisdiction of the Commission or by a

Commissioner or by such other bodies, boards, committees and/or any officer as may be
created or designated by the Commission for the purpose. The decision, ruling or order of
any such Commissioner, bodies, boards, committees and/or officer may be appealed to the
Commission sitting en banc within thirty (30) days after receipt by the appellant of notice of
such decision, ruling or order. The Commission shall promulgate rules of procedures to
govern the proceedings, hearings and appeals of cases falling with its jurisdiction.

The aggrieved party may appeal the order, decision or ruling of the Commission sitting en
banc to the Supreme Court by petition for review in accordance with the pertinent provisions
of the Rules of Court.

Even under the foregoing express grant of power and authority, there can be no automatic corporate
dissolution simply because the incorporators failed to abide by the required filing of by-laws
embodied in Section 46 of the Corporation Code. There is no outright "demise" of corporate
existence. Proper notice and hearing are cardinal components of due process in any democratic
institution, agency or society. In other words, the incorporators must be given the chance to explain
their neglect or omission and remedy the same.

That the failure to file by-laws is not provided for by the Corporation Code but in another law is of no
moment. P.D. No. 902-A, which took effect immediately after its promulgation on March 11, 1976, is
very much apposite to the Code. Accordingly, the provisions abovequoted supply the law governing
the situation in the case at bar, inasmuch as the Corporation Code and P.D. No. 902-A are statutes
in pari materia. Interpretare et concordare legibus est optimus interpretandi. Every statute must be
so construed and harmonized with other statutes as to form a uniform system of jurisprudence. 18

As the "rules and regulations or private laws enacted by the corporation to regulate, govern and
control its own actions, affairs and concerns and its stockholders or members and directors and
officers with relation thereto and among themselves in their relation to it," 19 by-laws are
indispensable to corporations in this jurisdiction. These may not be essential to corporate birth but
certainly, these are required by law for an orderly governance and management of corporations.
Nonetheless, failure to file them within the period required by law by no means tolls the automatic
dissolution of a corporation.

In this regard, private respondents are correct in relying on the pronouncements of this Court
in Chung Ka Bio v. Intermediate Appellate Court, 20 as follows:
 . . . . Moreover, failure to file the by-laws does not automatically operate to dissolve a
corporation but is now considered only a ground for such dissolution.

Section 19 of the Corporation Law, part of which is now Section 22 of the Corporation Code,
provided that the powers of the corporation would cease if it did not formally organize and
commence the transaction of its business or the continuation of its works within two years
from date of its incorporation. Section 20, which has been reproduced with some
modifications in Section 46 of the Corporation Code, expressly declared that "every
corporation formed under this Act, must within one month after the filing of the articles of
incorporation with the Securities and Exchange Commission, adopt a code of by-laws."
Whether this provision should be given mandatory or only directory effect remained a
controversial question until it became academic with the adoption of PD 902-A. Under this
decree, it is now clear that the failure to file by-laws within the required period is only a
ground for suspension or revocation of the certificate of registration of corporations.

Non-filing of the by-laws will not result in automatic dissolution of the corporation. Under
Section 6(I) of PD 902-A, the SEC is empowered to "suspend or revoke, after proper notice
and hearing, the franchise or certificate of registration of a corporation" on the ground inter
alia of "failure to file by-laws within the required period." It is clear from this provision that
there must first of all be a hearing to determine the existence of the ground, and secondly,
assuming such finding, the penalty is not necessarily revocation but may be only suspension
of the charter. In fact, under the rules and regulations of the SEC, failure to file the by-laws
on time may be penalized merely with the imposition of an administrative fine without
affecting the corporate existence of the erring firm.

It should be stressed in this connection that substantial compliance with conditions

subsequent will suffice to perfect corporate personality. Organization and commencement of
transaction of corporate business are but conditions subsequent and not prerequisites for
acquisition of corporate personality. The adoption and filing of by-laws is also a condition
subsequent. Under Section 19 of the Corporation Code, a Corporation commences its
corporate existence and juridical personality and is deemed incorporated from the date the
Securities and Exchange Commission issues certificate of incorporation under its official
seal. This may be done even before the filing of the by-laws, which under Section 46 of the
Corporation Code, must be adopted "within one month after receipt of official notice of the
issuance of its certificate of incorporation." 21

That the corporation involved herein is under the supervision of the HIGC does not alter the result of
this case. The HIGC has taken over the specialized functions of the former Home Financing
Corporation by virtue of Executive Order No. 90 dated December 17, 1989. 22 With respect to
homeowners associations, the HIGC shall "exercise all the powers, authorities and responsibilities
that are vested on the Securities and Exchange Commission . . . , the provision of Act 1459, as
amended by P.D. 902-A, to the contrary notwithstanding." 23

WHEREFORE, the instant petition for review on certiorari is hereby DENIED and the questioned
Decision of the Court of Appeals AFFIRMED. This Decision is immediately executory. Costs against
petitioner.

SO ORDERED.

Regalado, Puno and Mendoza, JJ., concur.

Torres, Jr., J., is on leave.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 172409 February 4, 2008

ROOS INDUSTRIAL CONSTRUCTION, INC. and OSCAR TOCMO, petitioners,

vs.
NATIONAL LABOR RELATIONS COMMISSION and JOSE MARTILLOS, respondents.

DECISION

TINGA, J.:

In this Petition for Review on Certiorari1 under Rule 45 of the 1997 Rules of Civil Procedure,
petitioners Roos Industrial Construction, Inc. and Oscar Tocmo assail the Court of
Appeals’2 Decision dated 12 January 2006 in C.A. G.R. SP No. 87572 and its Resolution3 dated 10
April 2006 denying their Motion for Reconsideration.4

The following are the antecedents.

On 9 April 2002, private respondent Jose Martillos (respondent) filed a complaint against petitioners
for illegal dismissal and money claims such as the payment of separation pay in lieu of reinstatement
plus full backwages, service incentive leave, 13th month pay, litigation expenses, underpayment of
holiday pay and other equitable reliefs before the National Capital Arbitration Branch of the National
Labor Relations Commission (NLRC), docketed as NLRC NCR South Sector Case No. 30-04-
01856-02.

Respondent alleged that he had been hired as a driver-mechanic sometime in 1988 but was not
made to sign any employment contract by petitioners. As driver mechanic, respondent was assigned
to work at Carmona, Cavite and he worked daily from 7:00 a.m. to 10:00 p.m. at the rate of P200.00
a day. He was also required to work during legal holidays but was only paid an additional 30%
holiday pay. He likewise claimed that he had not been paid service incentive leave and 13th month
pay during the entire course of his employment. On 16 March 2002, his employment was allegedly
terminated without due process.5

Petitioners denied respondent’s allegations. They contended that respondent had been hired on
several occasions as a project employee and that his employment was coterminous with the
duration of the projects. They also maintained that respondent was fully aware of this arrangement.
Considering that respondent’s employment had been validly terminated after the completion of the
projects, petitioners concluded that he is not entitled to separation pay and other monetary claims,
even attorney’s fees.6

The Labor Arbiter ruled that respondent had been illegally dismissed after finding that he had
acquired the status of a regular employee as he was hired as a driver with little interruption from one
project to another, a task which is necessary to the usual trade of his employer.7 The Labor Arbiter
pertinently stated as follows:
 x x x If it were true that complainant was hired as project employee, then there should have
been project employment contracts specifying the project for which complainant’s services
were hired, as well as the duration of the project as required in Art. 280 of the Labor Code.
As there were four (4) projects where complainant was allegedly assigned, there should
have been the equal number of project employment contracts executed by the complainant.
Further, for every project termination, there should have been the equal number of
termination report submitted to the Department of Labor and Employment. However, the
record shows that there is only one termination [report] submitted to DOLE pertaining to the
last project assignment of complainant in Carmona, Cavite.

In the absence of said project employment contracts and the corresponding Termination
Report to DOLE at every project termination, the inevitable conclusion is that the
complainant was a regular employee of the respondents.

In the case of Maraguinot, Jr. v. NLRC, 284 SCRA 539, 556 [1998], citing capital Industrial
Construction Group v. NLRC, 221 SCRA 469, 473-474 [1993], it was ruled therein that a
project employee may acquire the status of a regular employee when the following concurs:
(1) there is a continuous rehiring of project employees even after the cessation of a project;
and (2) the tasks performed by the alleged "project employee" are vital, necessary and
indispensable to the usual business or trade of the employer. Both factors are present in the
instant case. Thus, even granting that complainant was hired as a project employee, he
eventually became a regular employee as there was a continuous rehiring of this services.

xxx

In the instant case, apart from the fact that complainant was not made to sign any project
employment contract x x x he was successively transferred from one project after another,
and he was made to perform the same kind of work as driver.8

The Labor Arbiter ordered petitioners to pay respondent the aggregate sum of P224,647.17
representing backwages, separation pay, salary differential, holiday pay, service incentive leave pay
and 13th month pay.9

Petitioners received a copy of the Labor Arbiter’s decision on 17 December 2003. On 29 December
2003, the last day of the reglementary period for perfecting an appeal, petitioners filed a
Memorandum of Appeal10 before the NLRC and paid the appeal fee. However, instead of posting the
required cash or surety bond within the reglementary period, petitioners filed a Motion for Extension
of Time to Submit/Post Surety Bond.11 Petitioners stated that they could not post and submit the
required surety bond as the signatories to the bond were on leave during the holiday season, and
made a commitment to post and submit the surety bond on or before 6 January 2004. The NLRC did
not act on the motion. Thereafter, on 6 January 2004, petitioners filed a surety bond equivalent to
the award of the Labor Arbiter.12

In a Resolution13 dated July 29, 2004, the Second Division of the NLRC dismissed petitioners’
appeal for lack of jurisdiction. The NLRC stressed that the bond is an indispensable requisite for the
perfection of an appeal by the employer and that the perfection of an appeal within the reglementary
period and in the manner prescribed by law is mandatory and jurisdictional. In addition, the NLRC
restated that its Rules of Procedure proscribes the filing of any motion for extension of the period
within which to perfect an appeal. The NLRC summed up that considering that petitioners’ appeal
had not been perfected, it had no jurisdiction to act on said appeal and the assailed decision, as a
consequence, has become final and executory.14 The NLRC likewise denied petitioners’ Motion for
Reconsideration15 for lack of merit in another Resolution.16 On 11 November 2004, the NLRC issued
an entry of judgment declaring its resolution final and executory as of 9 October 2004. On
respondent’s motion, the Labor Arbiter ordered that the writ of execution be issued to enforce the
award. On 26 January 2005, a writ of execution was issued.17

Petitioners elevated the dismissal of their appeal to the Court of Appeals by way of a special civil
action of certiorari. They argued that the filing of the appeal bond evinced their willingness to comply
and was in fact substantial compliance with the Rules. They likewise maintained that the NLRC
gravely abused its discretion in failing to consider the meritorious grounds for their motion for
extension of time to file the appeal bond. Lastly, petitioners contended that the NLRC gravely erred
in issuing an entry of judgment as the assailed resolution is still open for review.18 On 12 January
2006, the Court of Appeals affirmed the challenged resolution of the NLRC. Hence, the instant
petition.

Before this Court, petitioners reiterate their previous assertions. They insist on the application of Star
Angel Handicraft v. National Labor Relations Commission, et al.19where it was held that a motion for
reduction of bond may be filed in lieu of the bond during the period for appeal. They aver that Borja
Estate v. Ballad,20which underscored the importance of the filing of a cash or surety bond in the
perfection of appeals in labor cases, had not been promulgated yet in 2003 when they filed their
appeal. As such, the doctrine in Borja could not be given retroactive effect for to do so would
prejudice and impair petitioners’ right to appeal. Moreover, they point out that judicial decisions have
no retroactive effect.21

The Court denies the petition.

The Court reiterates the settled rule that an appeal from the decision of the Labor Arbiter involving a
monetary award is only deemed perfected upon the posting of a cash or surety bond within ten (10)
days from such decision.22 Article 223 of the Labor Code states:

ART. 223. Appeal.—Decisions, awards or orders of the Labor Arbiter are final and executory
unless appealed to the Commission by any or both parties within ten (10) calendar days from
receipt of such decisions, awards, or orders. …

In case of a judgment involving a monetary award, an appeal by the employer may be

perfected only upon the posting of a cash or surety bond issued by a reputable bonding
company duly accredited by the Commission in the amount equivalent to the monetary
award in the judgment appealed from.

xxx

Contrary to petitioners’ assertion, the appeal bond is not merely procedural but jurisdictional. Without
said bond, the NLRC does not acquire jurisdiction over the appeal.23 Indeed, non-compliance with
such legal requirements is fatal and has the effect of rendering the judgment final and executory.24 It
must be stressed that there is no inherent right to an appeal in a labor case, as it arises solely from
the grant of statute.25

Evidently, the NLRC did not acquire jurisdiction over petitioners’ appeal within the ten (10)-day
reglementary period to perfect the appeal as the appeal bond was filed eight (8) days after the last
day thereof. Thus, the Court cannot ascribe grave abuse of discretion to the NLRC or error to the
Court of Appeals in refusing to take cognizance of petitioners’ belated appeal.

While indeed the Court has relaxed the application of this requirement in cases where the failure to
comply with the requirement was justified or where there was substantial compliance with the
rules,26 the overpowering legislative intent of Article 223 remains to be for a strict application of the
appeal bond requirement as a requisite for the perfection of an appeal and as a burden imposed on
the employer.27 As the Court held in the case of Borja Estate v. Ballad:28

The intention of the lawmakers to make the bond an indispensable requisite for the
perfection of an appeal by the employer is underscored by the provision that an appeal may
be perfected "only upon the posting of a cash or surety bond." The word "only" makes it
perfectly clear that the LAWMAKERS intended the posting of a cash or surety bond by the
employer to be

the exclusive means by which an employer’s appeal may be considered completed. The law
however does not require its outright payment, but only the posting of a bond to ensure that
the award will be eventually paid should the appeal fail. What petitioners have to pay is a
moderate and reasonable sum for the premium of such bond.29

Moreover, no exceptional circumstances obtain in the case at bar which would warrant a relaxation
of the bond requirement as a condition for perfecting the appeal. It is only in highly meritorious cases
that this Court opts not to strictly apply the rules and thus prevent a grave injustice from being
done30 and this is not one of those cases.

In addition, petitioners cannot take refuge behind the Court’s ruling in Star Angel. Pertinently, the
Court stated in Computer Innovations Center v. National Labor Relations Commission:31

Moreover, the reference in Star Angel to the distinction between the period to file the appeal
and to perfect the appeal has been pointedly made only once by this Court in Gensoli v.
NLRC thus, it has not acquired the sheen of venerability reserved for repeatedly-cited cases.
The distinction, if any, is not particularly evident or material in the Labor Code; hence, the
reluctance of the Court to adopt such doctrine. Moreover, the present provision in the NLRC
Rules of Procedure, that "the filing of a motion to reduce bond shall not stop the running of
the period to perfect appeal" flatly contradicts the notion expressed in Star Angel that there is
a distinction between filing an appeal and perfecting an appeal.

Ultimately, the disposition of Star Angel was premised on the ruling that a motion for
reduction of the appeal bond necessarily stays the period for perfecting the appeal, and that
the employer cannot be expected to perfect the appeal by posting the proper bond until such
time the said motion for reduction is resolved. The unduly stretched-out distinction between
the period to file an appeal and to perfect an appeal was not material to the resolution of Star
Angel, and thus could properly be considered as obiter dictum.32

Lastly, the Court does not agree that the Borja doctrine should only be applied prospectively. In the
first place, Borja is not a ground-breaking precedent as it is a reiteration, emphatic though, of long
standing jurisprudence.33 It is well to recall too our pronouncement in Senarillos v. Hermosisima, et
al.34 that the 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. 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, as
is the situation in this case.35

At all events, the decision of the Labor Arbiter appears to be well-founded and petitioners’ ill-starred
appeal untenable.

WHEREFORE, the Petition is DENIED. Costs against petitioners.

SO ORDERED.

Quisumbing,Chairperson Carpio, Carpio-Morales, Velasco, Jr., JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 109902 August 2, 1994

ALU-TUCP, Representing Members: ALAN BARINQUE, with 13 others, namely: ENGR. ALAN
G. BARINQUE, ENGR. DARRELL LEE ELTAGONDE, EDUARD H. FOOKSON, JR., ROMEO R.
SARONA, RUSSELL GACUS, JERRY BONTILAO, EUSEBIO MARIN, JR., LEONIDO ECHAVEZ,
BONIFACIO MEJOS, EDGAR S. BONTUYAN, JOSE G. GARGUENA, JR., OSIAS B.
DANDASAN, and GERRY I. FETALVERO, petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION and NATIONAL STEEL CORPORATION
(NSC), respondents.

Leonard U. Sawal for petitioners.

Saturnino Mejorada for private respondent.

FELICIANO, J.:

In this Petition for Certiorari, petitioners assail the Resolution of the National Labor Relations
Commission ("NLRC") dated 8 January 1993 which declared petitioners to be project employees of
private respondent National Steel Corporation ("NSC"), and the NLRC's subsequent Resolution of
15 February 1993, denying petitioners' motion for reconsideration.

Petitioners plead that they had been employed by respondent NSC in connection with its Five Year
Expansion Program (FAYEP I & II) 1 for varying lengths of time when they were separated from
NSC's service:

Employee Date Nature of Separated

Employed Employment

1. Alan Barinque 5-14-82 Engineer 1 8-31-91

2. Jerry Bontilao 8-05-85 Engineer 2 6-30-92
3. Edgar Bontuyan 11-03-82 Chairman to present
4. Osias Dandasan 9-21-82 Utilityman 1991
5. Leonido Echavez 6-16-82 Eng. Assistant 6-30-92
6. Darrell Eltagonde 5-20-85 Engineer 1 8-31-91
7. Gerry Fetalvero 4-08-85 Mat. Expediter regularized
8. Eduard Fookson 9-20-84 Eng. Assistant 8-31-91
9. Russell Gacus 1-30-85 Engineer 1 6-30-92
10. Jose Garguena 3-02-81 Warehouseman to present
11. Eusebio Mejos 11-17-82 Survey Aide 8-31-91
 12. Bonifacio Mejos 11-17-82 Surv. Party Head 1992
13. Romeo Sarona 2-26-83 Machine Operator 8-31-912

On 5 July 1990, petitioners filed separate complaints for unfair labor practice, regularization and
monetary benefits with the NLRC, Sub-Regional Arbitration Branch XII, Iligan City.

The complaints were consolidated and after hearing, the Labor Arbiter in a Decision dated 7 June
1991, declared petitioners "regular project employees who shall continue their employment as such
for as long as such [project] activity exists," but entitled to the salary of a regular employee pursuant
to the provisions in the collective bargaining agreement. It also ordered payment of salary
differentials. 3

Both parties appealed to the NLRC from that decision. Petitioners argued that they were regular, not
project, employees. Private respondent, on the other hand, claimed that petitioners are project
employees as they were employed to undertake a specific project — NSC's Five Year Expansion
Program (FAYEP I & II).

The NLRC in its questioned resolutions modified the Labor Arbiter's decision. It affirmed the Labor
Arbiter's holding that petitioners were project employees since they were hired to perform work in a
specific undertaking — the Five Years Expansion Program, the completion of which had been
determined at the time of their engagement and which operation was not directly related to the
business of steel manufacturing. The NLRC, however, set aside the award to petitioners of the same
benefits enjoyed by regular employees for lack of legal and factual basis.

Deliberating on the present Petition for Certiorari, the Court considers that petitioners have failed to
show any grave abuse of discretion or any act without or in excess of jurisdiction on the part of the
NLRC in rendering its questioned resolutions of 8 January 1993 and 15 February 1993.

The law on the matter is Article 280 of the Labor Code which reads in full:

Art. 280. Regular and Casual Employment — The provisions of the written
agreement to the contrary notwithstanding and regardless of the oral agreement of
the parties, and employment shall be deemed to be regular where the employee has
been engaged to perform activities which are usually necessary or desirable in the
usual business or trade of the employer, except where the employment has been
fixed for a specific project or undertaking the completion or termination of which has
been determined at the time of the engagement of the employee or where the work
or services to be performed is seasonal in nature and the employment is for the
duration of the season.

An employment shall be deemed to be casual if it is not covered by the preceding

paragraph: Provided, That, any employee who has rendered at least one year
service, whether such service is continuous or broken, shall be considered a regular
employee with respect to the activity in which he is employed and his employment
shall continue while such actually exists. (Emphasis supplied)

Petitioners argue that they are "regular" employees of NSC because: (i) their jobs are "necessary,
desirable and work-related to private respondent's main business, steel-making"; and (ii) they have
rendered service for six (6) or more years to private respondent NSC. 4

The basic issue is thus whether or not petitioners are properly characterized as "project employees"
rather than "regular employees" of NSC. This issue relates, of course, to an important consequence:
the services of project employees are co-terminous with the project and may be terminated upon the
end or completion of the project for which they were hired. 5 Regular employees, in contract, are
legally entitled to remain in the service of their employer until that service is terminated by one or
another of the recognized modes of termination of service under the Labor Code. 6

It is evidently important to become clear about the meaning and scope of the term "project" in the
present context. The "project" for the carrying out of which "project employees" are hired would
ordinarily have some relationship to the usual business of the employer. Exceptionally, the "project"
undertaking might not have an ordinary or normal relationship to the usual business of the employer.
In this latter case, the determination of the scope and parameeters of the "project" becomes fairly
easy. It is unusual (but still conceivable) for a company to undertake a project which has absolutely
no relationship to the usual business of the company; thus, for instance, it would be an unusual
steel-making company which would undertake the breeding and production of fish or the cultivation
of vegetables. From the viewpoint, however, of the legal characterization problem here presented to
the Court, there should be no difficulty in designating the employees who are retained or hired for
the purpose of undertaking fish culture or the production of vegetables as "project employees," as
distinguished from ordinary or "regular employees," so long as the duration and scope of the project
were determined or specified at the time of engagement of the "project employees." 7 For, as is
evident from the provisions of Article 280 of the Labor Code, quoted earlier, the principal test for
determining whether particular employees are properly characterized as "project employees" as
distinguished from "regular employees," is whether or not the "project employees" were assigned to
carry out a "specific project or undertaking," the duration (and scope) of which were specified at the
time the employees were engaged for that project.

In the realm of business and industry, we note that "project" could refer to one or the other of at least
two (2) distinguishable types of activities. Firstly, a project could refer to a particular job or
undertaking that is within the regular or usual business of the employer company, but which is
distinct and separate, and identifiable as such, from the other undertakings of the company. Such
job or undertaking begins and ends at determined or determinable times. The typical example of this
first type of project is a particular construction job or project of a construction company. A
construction company ordinarily carries out two or more discrete identifiable construction projects:
e.g., a twenty-five- storey hotel in Makati; a residential condominium building in Baguio City; and a
domestic air terminal in Iloilo City. Employees who are hired for the carrying out of one of these
separate projects, the scope and duration of which has been determined and made known to the
employees at the time of employment, are properly treated as "project employees," and their
services may be lawfully terminated at completion of the project.

The term "project" could also refer to, secondly, a particular job or undertaking that is not within the
regular business of the corporation. Such a job or undertaking must also be identifiably separate and
distinct from the ordinary or regular business operations of the employer. The job or undertaking also
begins and ends at determined or determinable times. The case at bar presents what appears to our
mind as a typical example of this kind of "project."

NSC undertook the ambitious Five Year Expansion Program I and II with the ultimate end in view of
expanding the volume and increasing the kinds of products that it may offer for sale to the public.
The Five Year Expansion Program had a number of component projects: e.g., (a) the setting up of a
"Cold Rolling Mill Expansion Project"; (b) the establishment of a "Billet Steel-Making Plant" (BSP); (c)
the acquisition and installation of a "Five Stand TDM"; and (d) the "Cold Mill Peripherals
Project." 8 Instead of contracting out to an outside or independent contractor the tasks
of constructing the buildings with related civil and electrical works that would house the new
machinery and equipment, the installation of the newly acquired mill or plant machinery and
equipment and the commissioning of such machinery and equipment, NSC opted to execute and
carry out its Five Yeear Expansion Projects "in house," as it were, by administration. The carrying
out of the Five Year Expansion Program (or more precisely, each of its component projects)
constitutes a distinct undertaking identifiable from the ordinary business and activity of NSC. Each
component project, of course, begins and ends at specified times, which had already been
determined by the time petitioners were engaged. We also note that NSC did the work here involved
— the construction of buildings and civil and electrical works, installation of machinery and
equipment and the commissioning of such machinery — only for itself. Private respondent NSC
was not in the business of constructing buildings and installing plant machinery for the general
business community, i.e., for unrelated, third party, corporations. NSC did not hold itself out to the
public as a construction company or as an engineering corporation.

Which ever type of project employment is found in a particular case, a common basic requisite is
that the designation of named employees as "project employees" and their assignment to a specific
project, are effected and implemented in good faith, and not merely as a means of evading
otherwise applicable requirements of labor laws.

Thus, the particular component projects embraced in the Five Year Expansion Program, to which
petitioners were assigned, were distinguishable from the regular or ordinary business of NSC which,
of course, is the production or making and marketing of steel products. During the time petitioners
rendered services to NSC, their work was limited to one or another of the specific component
projects which made up the FAYEP I and II. There is nothing in the record to show that petitioners
were hired for, or in fact assigned to, other purposes, e.g., for operating or maintaining the old, or
previously installed and commissioned, steel-making machinery and equipment, or for selling the
finished steel products.

We, therefore, agree with the basic finding of the NLRC (and the Labor Arbiter) that the petitioners
were indeed "project employees:"

It is well established by the facts and evidence on record that herein 13 complainants
were hired and engaged for specific activities or undertaking the period of which has
been determined at time of hiring or engagement. It is of public knowledge and which
this Commission can safely take judicial notice that the expansion program (FAYEP)
of respondent NSC consist of various phases [of] project components which are
being executed or implemented independently or simultaneously from each other . . .

In other words, the employment of each "project worker" is dependent and co-
terminous with the completion or termination of the specific activity or undertaking
[for which] he was hired which has been pre-determined at the time of engagement.
Since, there is no showing that they (13 complainants) were engaged to perform
work-related activities to the business of respondent which is steel-making, there is
no logical and legal sense of applying to them the proviso under the second
paragraph of Article 280 of the Labor Code, as amended.

xxx xxx xxx

The present case therefore strictly falls under the definition of "project employees" on
paragraph one of Article 280 of the Labor Code, as amended. Moreover, it has been
held that the length of service of a project employee is not the controlling test of
employment tenure but whether or not "the employment has been fixed for a specific
project or undertaking the completion or termination of which has been determined at
the time of the engagement of the employee". (See Hilario Rada v. NLRC, G.R. No.
96078, January 9, 1992; and Sandoval Shipping, Inc. v. NLRC, 136 SCRA 674
(1985). 9
Petitioners next claim that their service to NSC of more than six (6) years should qualify them as
regular employees. We believe this claim is without legal basis. The simple fact that the employment
of petitioners as project employees had gone beyond one (1) year, does not detract from, or legally
dissolve, their status as project employees. 10 The second paragraph of Article 280 of the Labor
Code, quoted above, providing that an employee who has served for at least one (1) year, shall be
considered a regular employee, relates to casual employees, not to project employees.

In the case of Mercado, Sr. vs. National Labor Relations Commission, 11 this Court ruled that the
proviso in the second paragraph of Article 280 relates only to casual employees and is not
applicable to those who fall within the definition of said Article's first paragraph, i.e., project
employees. The familiar grammatical rule is that a proviso is to be construed with reference to the
immediately preceding part of the provision to which it is attached, and not to other sections thereof,
unless the clear legislative intent is to restrict or qualify not only the phrase immediately preceding
the proviso but also earlier provisions of the statute or even the statute itself as a whole. No such
intent is observable in Article 280 of the Labor Code, which has been quoted earlier.

ACCORDINGLY, in view of the foregoing, the Petition for Certiorari is hereby DISMISSED for lack of
merit. The Resolutions of the NLRC dated 8 January 1993 and 15 February 1993 are hereby
AFFIRMED. No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Cruz, Padilla, Bidin, Regalado, Davide, Jr., Romero, Melo, Quiason, Puno,
Vitug, Kapunan and Mendoza, JJ., concur.

Bellosillo, J., is on leave.