ARTICLES 1 – 10 NEW CIVIL CODE

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

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

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

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in Section
6, Article IV of the 1973 Philippine Constitution, as well as the principle that laws to be valid and
1

enforceable must be published in the Official Gazette or otherwise effectively promulgated,

petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause
the publication in the Official Gazette of various presidential decrees, letters of instructions, general
orders, proclamations, executive orders, letter of implementation and administrative orders.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The interpretation given by respondent is in accord with this Court's construction of said article. In a
long line of decisions, this Court has ruled that publication in the Official Gazette is necessary in
4

those cases where the legislation itself does not provide for its effectivity date-for then the date of
publication is material for determining its date of effectivity, which is the fifteenth day following its
publication-but not when the law itself provides for the date when it goes into effect.

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

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

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

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

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

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

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

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

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

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

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

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

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

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos.
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. Neither
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the subject matters nor the texts of these PDs can be ascertained since no copies thereof are
available. But whatever their subject matter may be, it is undisputed that none of these unpublished
PDs has ever been implemented or enforced by the government. In Pesigan vs. Angeles, the 11

Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of
the contents of [penal] regulations and make the said penalties binding on the persons affected
thereby. " The cogency of this holding is apparently recognized by respondent officials considering
the manifestation in their comment that "the government, as a matter of policy, refrains from
prosecuting violations of criminal laws until the same shall have been published in the Official
Gazette or in some other publication, even though some criminal laws provide that they shall take
effect immediately.

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

SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.

Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to
do so would in all cases and under all circumstances result in a statute, presidential decree or any
other executive act of the same category being bereft of any binding force and effect. To so hold
would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana
so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what
is required for any statute or presidential act to be impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise. I am
1

likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the
extent that it requires notice before laws become effective, for no person should be bound by a law
without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette.2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. It would indeed be to reduce it to
3

the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable. Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the
4

doctrine that it must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose
of the question of what is the jural effect of past presidential decrees or executive acts not so
published. For prior thereto, it could be that parties aware of their existence could have conducted
themselves in accordance with their provisions. If no legal consequences could attach due to lack of
publication in the Official Gazette, then serious problems could arise. Previous transactions based
on such "Presidential Issuances" could be open to question. Matters deemed settled could still be
inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where
such presidential decree or executive act is made the basis of a criminal prosecution, then, of
course, its ex post facto character becomes evident. In civil cases though, retroactivity as such is
5

not conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover,
where the challenged presidential decree or executive act was issued under the police power, the
non-impairment clause of the Constitution may not always be successfully invoked. There must still
be that process of balancing to determine whether or not it could in such a case be tainted by
infirmity. In traditional terminology, there could arise then a question of unconstitutional application.
6

That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I am
not in agreement with the view that such publication must be in the Official Gazette. The Civil Code
itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation, citing the settled principle based
1

on due process enunciated in earlier cases that "before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be published and the people
officially and specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to
a law that has been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication. To sustain respondents' misreading
2

that "most laws or decrees specify the date of their effectivity and for this reason, publication in the
Official Gazette is not necessary for their effectivity would be to nullify and render nugatory the Civil
3

Code's indispensable and essential requirement of prior publication in the Official Gazette by the
simple expedient of providing for immediate effectivity or an earlier effectivity date in the law
itself before the completion of 15 days following its publication which is the period generally fixed by
the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a date
of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after
its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to
the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite
for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as
to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates
what shall be published in the Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to
do so would in all cases and under all circumstances result in a statute, presidential decree or any
other executive act of the same category being bereft of any binding force and effect. To so hold
would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana
so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what
is required for any statute or presidential act to be impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise. I am1

likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the
extent that it requires notice before laws become effective, for no person should be bound by a law
without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. It would indeed be to reduce it to
3

the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable. Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the
4

doctrine that it must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose
of the question of what is the jural effect of past presidential decrees or executive acts not so
published. For prior thereto, it could be that parties aware of their existence could have conducted
themselves in accordance with their provisions. If no legal consequences could attach due to lack of
publication in the Official Gazette, then serious problems could arise. Previous transactions based
on such "Presidential Issuances" could be open to question. Matters deemed settled could still be
inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where
such presidential decree or executive act is made the basis of a criminal prosecution, then, of
course, its ex post facto character becomes evident. In civil cases though, retroactivity as such is
5

not conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover,
where the challenged presidential decree or executive act was issued under the police power, the
non-impairment clause of the Constitution may not always be successfully invoked. There must still
be that process of balancing to determine whether or not it could in such a case be tainted by
infirmity. In traditional terminology, there could arise then a question of unconstitutional application.
6

That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I am
not in agreement with the view that such publication must be in the Official Gazette. The Civil Code
itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation, citing the settled principle based
1

on due process enunciated in earlier cases that "before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be published and the people
officially and specially informed of said contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to
a law that has been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication. To sustain respondents' misreading
2

that "most laws or decrees specify the date of their effectivity and for this reason, publication in the
Official Gazette is not necessary for their effectivity would be to nullify and render nugatory the Civil
3

Code's indispensable and essential requirement of prior publication in the Official Gazette by the
simple expedient of providing for immediate effectivity or an earlier effectivity date in the law
itself before the completion of 15 days following its publication which is the period generally fixed by
the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a date
of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after
its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to
the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite
for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as
to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates
what shall be published in the Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.
DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.

Footnotes

1 Section 6. The right of the people to information on matters of public concern shag
be recognized, access to official records, and to documents and papers pertaining to
official acts, transactions, or decisions, shag be afforded the citizens subject to such
limitation as may be provided by law.

2 Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs. Aidanese, 45 Phil. 345;
Almario vs. City Mayor, 16 SCRA 151;Parting vs. San Jose Petroleum, 18 SCRA
924; Dumlao vs. Comelec, 95 SCRA 392.

3 16 Phil. 366, 378.

4 Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia vs. Balolong, 81 Phil.
486; Republic of the Philippines vs. Encamacion, 87 Phil. 843; Philippine Blooming
Mills, Inc. vs. Social Security System, 17 SCRA 1077; Askay vs. Cosalan, 46 Phil.
179.

5 1 Manresa, Codigo Civil 7th Ed., p. 146.

6 People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. Secretary of Education, et
al., 110 Phil. 150.

7 82 SCRA 30, dissenting opinion.

8 308 U.S. 371, 374.

9 93 Phil.. 68,.

10 The report was prepared by the Clerk of Court after Acting Director Florendo S.
Pablo Jr. of the Government Printing Office, failed to respond to her letter-request
regarding the respective dates of publication in the Official Gazette of the presidential
issuances listed therein. No report has been submitted by the Clerk of Court as to the
publication or non-publication of other presidential issuances.

11 129 SCRA 174.

Fernando, CJ.:

1 Separate Opinion of Justice Plana, first paragraph. He mentioned in tills connection

Article 7, Sec. 21 of the Wisconsin Constitution and State ex rel. White v. Grand
Superior Ct., 71 ALR 1354, citing the Constitution of Indiana, U.S.A

2 Ibid, closing paragraph.

3 Learned Hand, The Spirit of Liberty 104 (1960).

4 Cardozo, The Growth of the Law, 3 (1924).

5 Cf. Nunez v. Sandiganbayan, G.R. No. 50581-50617, January 30, 1982, 111
SCRA 433.

6 Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172.

Teehankee, J.:

1 People vs. de Dios, G.R. No. 11003, Aug. 3l, 1959, per the late Chief Justice
Paras.

2 Notes in brackets supplied.

3 Respondents: comment, pp. 14-15.

Plana, J.:

* See e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The legislature shall provide
publication of all statute laws ... and no general law shall be in force until published."
See also S ate ex rel. White vs. Grand Superior Ct., 71 ALR 1354, citing Constitution
of Indiana, U.S.A.
G.R. No. 80718 January 29, 1988

FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners,

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

RESOLUTION

CORTES, J.:

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

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

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

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

Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that
no motion for extension of time to file a motion for reconsideration may be filed with the Metropolitan
or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a
motion may be filed only in cases pending with the Supreme Court as the court of last resort, which
may in its sound discretion either grant or deny the extension requested. (at p. 212)
Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 73146-
53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and clarify the
modes and periods of appeal.

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

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

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

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

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

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

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

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

WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of
merit.

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

G.R. No. L-6791 March 29, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
QUE PO LAY, defendant-appellant.

Prudencio de Guzman for appellant.

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

MONTEMAYOR, J.:

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

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

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

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

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

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

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

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

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

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

Paras, C.J., Bengzon, Padilla, Reyes, Bautista Angelo, Labrador, Concepcion and Diokno,
JJ., concur.
G.R. No. 176006 March 26, 2010

NATIONAL POWER CORPORATION, Petitioner,

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

DECISION

CORONA, J.:

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

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

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

The claim for attorney’s fees is denied for lack of merit.

No costs.

SO ORDERED.2

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

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

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

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

3. QUALIFIED BIDDERS

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

In April 2003, NPC published an invitation for the pre-qualification of bidders for the public sale of its
scrap ACSR7 cables. Respondent Pinatubo Commercial, a trader of scrap materials such as copper,
aluminum, steel and other ferrous and non-ferrous materials, submitted a pre-qualification form to
NPC. Pinatubo, however, was informed in a letter dated April 29, 2003 that its application for pre-
qualification had been denied.8 Petitioner asked for reconsideration but NPC denied it.9

Pinatubo then filed a petition in the RTC for the annulment of NPC Circular No. 99-75, with a prayer
for the issuance of a temporary restraining order and/or writ of preliminary injunction. 10 Pinatubo
argued that the circular was unconstitutional as it violated the due process and equal protection
clauses of the Constitution, and ran counter to the government policy of competitive public bidding. 11

The RTC upheld Pinatubo’s position and declared items 3 and 3.1 of the circular unconstitutional.
The RTC ruled that it was violative of substantive due process because, while it created rights in
favor of third parties, the circular had not been published. It also pronounced that the circular
violated the equal protection clause since it favored manufacturers and processors of aluminum
scrap vis-à-vis dealers/traders in the purchase of aluminum ACSR cables from NPC. Lastly, the RTC
found that the circular denied traders the right to exercise their business and restrained free
competition inasmuch as it allowed only a certain sector to participate in the bidding. 12

In this petition, NPC insists that there was no need to publish the circular since it was not of general
application. It was addressed only to particular persons or class of persons, namely the disposal
committees, heads of offices, regional and all other officials involved in the disposition of ACSRs.
NPC also contends that there was a substantial distinction between manufacturers and traders of
aluminum scrap materials specially viewed in the light of RA 7832.13 According to NPC, by limiting
the prospective bidders to manufacturers, it could easily monitor the market of its scrap ACSRs.
There was rampant fencing of stolen NPC wires. NPC likewise maintains that traders were not
prohibited from participating in the pre-qualification as long as they had a tie-up with a
manufacturer.14

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

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

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

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

(b) restrained free trade and competition.

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

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

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

Tañada, however, qualified that:

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

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

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

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

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

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

The equal protection clause means that "no person or class of persons shall be deprived of the
same protection of laws which is enjoyed by other persons or other classes in the same place and in
like circumstances."25 The guaranty of the equal protection of the laws is not violated by a legislation
based on a reasonable classification.26 The equal protection clause, therefore, does not preclude
classification of individuals who may be accorded different treatment under the law as long as the
classification is reasonable and not arbitrary.27
1avvphi1

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

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

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

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

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

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

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

xxx

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

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

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

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

SO ORDERED.

RENATO C. CORONA
Associate Justice
Chairperson

WE CONCUR:

PRESBITERO J. VELASCO, JR. DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN* JOSE CATRAL MENDOZA

Associate Justice 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.

RENATO C. CORONA
Associate Justice
Chairperson
 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.

ANTONIO T. CARPIO
Acting Chief Justice

Footnotes

* Additional member per raffle dated March 24, 2010 in lieu of Justice Antonio Eduardo B.
Nachura.

1
Represented by the Office of the Solicitor General.

2
Rollo, p. 40.

3
Id., p. 42.

4
Id., p. 21.

5
Subject: Implementing Guidelines Governing the Disposal Through Sale of SCRAP ACSRs.

6
Rollo, p. 43.

7
Aluminum conductor steel-reinforced.

8
Rollo, p. 74.

9
Id., p. 56.

10
Docketed as Civil Case No. MC-03-2179.

11
Rollo, pp. 56-59.

12
Id., pp. 37-40.

13
Republic Act No. 7832 or the Anti-Electricity and Electric Transmission Lines/Materials
Pilferage Act of 1994.

14
Id., pp. 22-30.

15
G.R. No. L-63915, 24 April 1985, 146 SCRA 446.

16
Id., p. 453-454.
17
Id., p. 454.

18
Items 4.1 to 4.1.2 require Cost Center Heads to report either to the Chairman of the
Central or Regional Asset Management Sub-Committee (CAMSUC/RAMSUC) all available
scrap ACSRs in their respective area of responsibility; Items 4.2 to 4.2.5 tasked the Head
Office Bidding and Services Section and the Regional Materials Planning Services with the
pre-qualification of prospective bidders; Items 4.3 to 4.3.4 set the procedure in the public
bidding to be conducted by the CAMSUC or RAMSUC; and Items 4.4 to 4.4.4 direct the
appraisal and coordination by the Asset Disposal Section and its Regional Counterpart of the
awarded scrap ACSRs.

19
Items 5 to 8 and subsections.

J.G. Summit Holdings, Inc. v. Court of Appeals, G.R. No. 124293, 24 September 2003, 412
20

SCRA 10, 31-32.

21
Id., p. 32.

22
Desierto v. Ocampo, G.R. No. 155419, 4 March 2005, 452 SCRA 789, 804.

Terminal Facilities and Services Corporation v. Philippine Ports Authority, G.R. No.
23

135639, 27 February 2002, 378 SCRA 82, 106.

Albay Accredited Constructors Association, Inc. v. Desierto, G.R. No. 133517, 30 January
24

2006, 480 SCRA 520, 533.

Abakada Guro Party List v. Ermita, G.R. No. 168056, 1 September 2005, 469 SCRA 1,
25

139.

Coconut Oil Refiners Association, Inc. v. Torres, G.R. No. 132527, 29 July 2005, 465
26

SCRA 47, 75.

27
Ambros v. Commission on Audit, G.R. No. 159700, 30 June 2005, 462 SCRA 572, 597.

28
Rollo, p. 39.

29
Id., p. 206.

30
Section 3 (a)(1) to (4), in relation to Section 3 (b)(2).

31
Rollo, pp. 288-289.

32
Supra, J.G. Summit Holdings, Inc., note 20.

33
Rollo, p. 69.

34
Supra, Desierto, note 22, citing National Power Corporation v. Philipp Brothers Oceanic,
Inc.. 369 SCRA 629 (2001).
 Tatad v. Secretary of the Department of Energy, G.R. No. 124360, 5 November 1997, 281
35

SCRA 330, 357.

Pest Management Association of the Philippines (PMAP) v. Fertilizer and Pesticide

36

Authority (FPA), G.R. No. 156041, 21 February 2007, 516 SCRA 360, 369.

37
Ibid.
G.R. No. 180643 March 25, 2008

ROMULO L. NERI, petitioner,

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

DECISION

LEONARDO-DE CASTRO, J.:

At bar is a petition for certiorari under Rule 65 of the Rules of Court assailing the show
cause Letter1 dated November 22, 2007 and contempt Order2 dated January 30, 2008 concurrently
issued by respondent

Senate Committees on Accountability of Public Officers and Investigations, 3 Trade and

Commerce,4 and National Defense and Security5 against petitioner Romulo L. Neri, former Director
General of the National Economic and Development Authority (NEDA).

The facts, as culled from the pleadings, are as follows:

On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a
contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and
services for the National Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290
(approximately P16 Billion Pesos). The Project was to be financed by the People's Republic of
China.

In connection with this NBN Project, various Resolutions were introduced in the Senate, as follows:

(1) P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel, Jr., entitled
RESOLUTION DIRECTING THE BLUE RIBBON COMMITTEE AND THE COMMITTEE ON
TRADE AND INDUSTRY TO INVESTIGATE, IN AID OF LEGISLATION, THE
CIRCUMSTANCES LEADING TO THE APPROVAL OF THE BROADBAND CONTRACT
WITH ZTE AND THE ROLE PLAYED BY THE OFFICIALS CONCERNED IN GETTING IT
CONSUMMATED AND TO MAKE RECOMMENDATIONS TO HALE TO THE COURTS OF
LAW THE PERSONS RESPONSIBLE FOR ANY ANOMALY IN CONNECTION
THEREWITH AND TO PLUG THE LOOPHOLES, IF ANY IN THE BOT LAW AND OTHER
PERTINENT LEGISLATIONS.

(2) P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled Á RESOLUTION URGING
PRESIDENT GLORIA MACAPAGAL ARROYO TO DIRECT THE CANCELLATION OF THE
ZTE CONTRACT

(3) P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson, entitled RESOLUTION
DIRECTING THE COMMITTEE ON NATIONAL DEFENSE AND SECURITY TO CONDUCT
AN INQUIRY IN AID OF LEGISLATION INTO THE NATIONAL SECURITY IMPLICATIONS
OF AWARDING THE NATIONAL BROADBAND NETWORK CONTRACT TO THE
CHINESE FIRM ZHONG XING TELECOMMUNICATIONS EQUIPMENT COMPANY
LIMITED (ZTE CORPORATION) WITH THE END IN VIEW OF PROVIDING REMEDIAL
 LEGISLATION THAT WILL PROTECT OUR NATIONAL SOVEREIGNTY, SECURITY AND
TERRITORIAL INTEGRITY.

(4) P.S. Res. No. 136, introduced by Senator Miriam Defensor Santiago, entitled
RESOLUTION DIRECTING THE PROPER SENATE COMMITTEE TO CONDUCT AN
INQUIRY, IN AID OF LEGISLATION, ON THE LEGAL AND ECONOMIC JUSTIFICATION
OF THE NATIONAL BROADBAND NETWORK (NBN) PROJECT OF THE NATIONAL
GOVERNMENT.

At the same time, the investigation was claimed to be relevant to the consideration of three (3)
pending bills in the Senate, to wit:

1. Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT SUBJECTING
TREATIES, INTERNATIONAL OR EXECUTIVE AGREEMENTS INVOLVING FUNDING IN
THE PROCUREMENT OF INFRASTRUCTURE PROJECTS, GOODS, AND CONSULTING
SERVICES TO BE INCLUDED IN THE SCOPE AND APPLICATION OF PHILIPPINE
PROCUREMENT LAWS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9184,
OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT REFORM ACT, AND
FOR OTHER PURPOSES;

2. Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled AN ACT IMPOSING
SAFEGUARDS IN CONTRACTING LOANS CLASSIFIED AS OFFICIAL DEVELOPMENT
ASSISTANCE, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8182, AS
AMENDED BY REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS THE OFFICIAL
DEVELOPMENT ASSISTANCE ACT OF 1996, AND FOR OTHER PURPOSES; and

3. Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, entitled AN ACT
MANDATING CONCURRENCE TO INTERNATIONAL AGREEMENTS AND EXECUTIVE
AGREEMENTS.

Respondent Committees initiated the investigation by sending invitations to certain personalities and
cabinet officials involved in the NBN Project. Petitioner was among those invited. He was summoned
to appear and testify on September 18, 20, and 26 and October 25, 2007. However, he attended
only the September 26 hearing, claiming he was "out of town" during the other dates.

In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several high
executive officials and power brokers were using their influence to push the approval of the NBN
Project by the NEDA. It appeared that the Project was initially approved as a Build-Operate-Transfer
(BOT) project but, on March 29, 2007, the NEDA acquiesced to convert it into a government-to-
government project, to be financed through a loan from the Chinese Government.

On September 26, 2007, petitioner testified before respondent Committees for eleven (11) hours. He
disclosed that then Commission on Elections (COMELEC) Chairman Benjamin Abalos offered
him P200 Million in exchange for his approval of the NBN Project. He further narrated that he
informed President Arroyo about the bribery attempt and that she instructed him not to accept the
bribe. However, when probed further on what they discussed about the NBN Project, petitioner
refused to answer, invoking "executive privilege". In particular, he refused to answer the questions
on (a) whether or not President Arroyo followed up the NBN Project, 6 (b) whether or not she directed
him to prioritize it,7 and (c) whether or not she directed him to approve.8

Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring

him to appear and testify on November 20, 2007.
However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita requested
respondent Committees to dispense with petitioner's testimony on the ground of executive privilege.
The pertinent portion of the letter reads:

With reference to the subpoena ad testificandum issued to Secretary Romulo Neri to appear
and testify again on 20 November 2007 before the Joint Committees you chair, it will be
recalled that Sec. Neri had already testified and exhaustively discussed the ZTE / NBN
project, including his conversation with the President thereon last 26 September 2007.

Asked to elaborate further on his conversation with the President, Sec. Neri asked for time to
consult with his superiors in line with the ruling of the Supreme Court in Senate v. Ermita,
488 SCRA 1 (2006).

Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on
the following questions, to wit:

a) Whether the President followed up the (NBN) project?

b) Were you dictated to prioritize the ZTE?

c) Whether the President said to go ahead and approve the project after being
told about the alleged bribe?

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

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

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

Considering that Sec. Neri has been lengthily interrogated on the subject in an
unprecedented 11-hour hearing, wherein he has answered all questions propounded to him
except the foregoing questions involving executive privilege, we therefore request that his
testimony on 20 November 2007 on the ZTE / NBN project be dispensed with.
On November 20, 2007, petitioner did not appear before respondent Committees. Thus, on
November 22, 2007, the latter issued the show cause Letter requiring him to explain why he should
not be cited in contempt. The Letter reads:

Since you have failed to appear in the said hearing, the Committees on Accountability of
Public Officers and Investigations (Blue Ribbon), Trade and Commerce and National
Defense and Security require you to show cause why you should not be cited in contempt
under Section 6, Article 6 of the Rules of the Committee on Accountability of Public Officers
and Investigations (Blue Ribbon).

The Senate expects your explanation on or before 2 December 2007.

On November 29, 2007, petitioner replied to respondent Committees, manifesting that it was not his
intention to ignore the Senate hearing and that he thought the only remaining questions were those
he claimed to be covered by executive privilege, thus:

It was not my intention to snub the last Senate hearing. In fact, I have cooperated with the
task of the Senate in its inquiry in aid of legislation as shown by my almost 11 hours stay
during the hearing on 26 September 2007. During said hearing, I answered all the questions
that were asked of me, save for those which I thought was covered by executive privilege,
and which was confirmed by the Executive Secretary in his Letter 15 November 2007. In
good faith, after that exhaustive testimony, I thought that what remained were only the three
questions, where the Executive Secretary claimed executive privilege. Hence, his request
that my presence be dispensed with.

Be that as it may, should there be new matters that were not yet taken up during the 26
September 2007 hearing, may I be furnished in advance as to what else I need to clarify, so
that as a resource person, I may adequately prepare myself.

In addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio R. Bautista, stating,
among others that: (1) his (petitioner) non-appearance was upon the order of the President; and (2)
his conversation with President Arroyo dealt with delicate and sensitive national security and
diplomatic matters relating to the impact of the bribery scandal involving high government officials
and the possible loss of confidence of foreign investors and lenders in the Philippines. The letter
ended with a reiteration of petitioner's request that he "be furnished in advance" as to what else he
needs to clarify so that he may adequately prepare for the hearing.

In the interim, on December 7, 2007, petitioner filed with this Court the present petition
for certiorari assailing the show cause Letter dated November 22, 2007.

Respondent Committees found petitioner's explanations unsatisfactory. Without responding to his

request for advance notice of the matters that he should still clarify, they issued the Order dated
January 30, 2008, citing him in contempt of respondent Committees and ordering his arrest and
detention at the Office of the Senate Sergeant-At-Arms until such time that he would appear and
give his testimony. The said Order states:

ORDER

For failure to appear and testify in the Committee's hearing on Tuesday, September 18,
2007; Thursday, September 20, 2007; Thursday, October 25, 2007; and Tuesday, November
20, 2007, despite personal notice and Subpoenas Ad Testificandum sent to and received by
 him, which thereby delays, impedes and obstructs, as it has in fact delayed, impeded and
obstructed the inquiry into the subject reported irregularities, AND for failure to explain
satisfactorily why he should not be cited for contempt (Neri letter of 29 November 2007),
herein attached) ROMULO L. NERI is hereby cited in contempt of this (sic) Committees
and ordered arrested and detained in the Office of the Senate Sergeant-At-Arms until
such time that he will appear and give his testimony.

The Sergeant-At-Arms is hereby directed to carry out and implement this Order and make a
return hereof within twenty four (24) hours from its enforcement.

SO ORDERED.

On the same date, petitioner moved for the reconsideration of the above Order. 9 He insisted that he
has not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his
willingness to testify on new matters, however, respondent Committees did not respond to his
request for advance notice of questions. He also mentioned the petition for certiorari he filed on
December 7, 2007. According to him, this should restrain respondent Committees from enforcing the
show cause Letter "through the issuance of declaration of contempt" and arrest.

In view of respondent Committees' issuance of the contempt Order, petitioner filed on February 1,
2008 a Supplemental Petition for Certiorari (With Urgent Application for TRO/Preliminary Injunction),
seeking to restrain the implementation of the said contempt Order.

On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining respondent
Committees from implementing their contempt Order, (b) requiring the parties to observe the status
quo prevailing prior to the issuance of the assailed order, and (c) requiring respondent Committees
to file their comment.

Petitioner contends that respondent Committees' show cause Letter and contempt Order were
issued with grave abuse of discretion amounting to lack or excess of jurisdiction. He stresses that his
conversations with President Arroyo are "candid discussions meant to explore options in
making policy decisions." According to him, these discussions "dwelt on the impact of the
bribery scandal involving high government officials on the country's diplomatic relations and
economic and military affairs and the possible loss of confidence of foreign investors and
lenders in the Philippines." He also emphasizes that his claim of executive privilege is upon the
order of the President and within the parameters laid down in Senate v. Ermita10 and United States v.
Reynolds.11 Lastly, he argues that he is precluded from disclosing communications made

to him in official confidence under Section 712 of Republic Act No. 6713, otherwise known as Code of
Conduct and Ethical Standards for Public Officials and Employees, and Section 2413 (e) of Rule 130
of the Rules of Court.

Respondent Committees assert the contrary. They argue that (1) petitioner's testimony is material
and pertinent in the investigation conducted in aid of legislation; (2) there is no valid justification for
petitioner to claim executive privilege; (3) there is no abuse of their authority to order petitioner's
arrest; and (4) petitioner has not come to court with clean hands.

In the oral argument held last March 4, 2008, the following issues were ventilated:

1. What communications between the President and petitioner Neri are covered by the
principle of 'executive privilege'?
 1.a Did Executive Secretary Ermita correctly invoke the principle of executive
privilege, by order of the President, to cover (i) conversations of the President in the
exercise of her executive and policy decision-making and (ii) information, which
might impair our diplomatic as well as economic relations with the People's Republic
of China?

1.b. Did petitioner Neri correctly invoke executive privilege to avoid testifying on his
conversations with the President on the NBN contract on his assertions that the said
conversations "dealt with delicate and sensitive national security and
diplomatic matters relating to the impact of bribery scandal involving high
government officials and the possible loss of confidence of foreign investors
and lenders in the Philippines" x x x within the principles laid down in Senate v.
Ermita (488 SCRA 1 [2006])?

1.c Will the claim of executive privilege in this case violate the following provisions of
the Constitution:

Sec. 28, Art. II (Full public disclosure of all transactions involving public
interest)

Sec. 7, Art. III (The right of the people to information on matters of public
concern)

Sec. 1, Art. XI (Public office is a public trust)

Sec. 17, Art. VII (The President shall ensure that the laws be faithfully
executed)

and the due process clause and the principle of separation of powers?

2. What is the proper procedure to be followed in invoking executive privilege?

3. Did the Senate Committees gravely abuse their discretion in ordering the arrest of
petitioner for non-compliance with the subpoena?

After the oral argument, the parties were directed to manifest to the Court within twenty-four (24)
hours if they are amenable to the Court's proposal of allowing petitioner to immediately resume his
testimony before the Senate Committees to answer the other questions of the Senators without
prejudice to the decision on the merits of this pending petition. It was understood that petitioner may
invoke executive privilege in the course of the Senate Committees proceedings, and if the
respondent Committees disagree thereto, the unanswered questions will be the subject of a
supplemental pleading to be resolved along with the three (3) questions subject of the present
petition.14 At the same time, respondent Committees were directed to submit several pertinent
documents.15

The Senate did not agree with the proposal for the reasons stated in the Manifestation dated March
5, 2008. As to the required documents, the Senate and respondent Committees manifested that they
would not be able to submit the latter's "Minutes of all meetings" and the "Minute Book" because it
has never been the "historical and traditional legislative practice to keep them." 16 They instead
submitted the Transcript of Stenographic Notes of respondent Committees' joint public hearings.
On March 17, 2008, the Office of the Solicitor General (OSG) filed a Motion for Leave to Intervene
and to Admit Attached Memorandum, founded on the following arguments:

(1) The communications between petitioner and the President are covered by the principle of
"executive privilege."

(2) Petitioner was not summoned by respondent Senate Committees in accordance with the
law-making body's power to conduct inquiries in aid of legislation as laid down in Section 21,
Article VI of the Constitution and Senate v. Ermita.

(3) Respondent Senate Committees gravely abused its discretion for alleged non-compliance
with the Subpoena dated November 13, 2007.

The Court granted the OSG's motion the next day, March 18, 2008.

As the foregoing facts unfold, related events transpired.

On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking Executive
Order No. 464 and Memorandum Circular No. 108. She advised executive officials and employees
to follow and abide by the Constitution, existing laws and jurisprudence, including, among others, the
case of Senate v. Ermita17 when they are invited to legislative inquiries in aid of legislation.

At the core of this controversy are the two (2) crucial queries, to wit:

First, are the communications elicited by the subject three (3) questions covered by
executive privilege?

And second, did respondent Committees commit grave abuse of discretion in issuing the
contempt Order?

We grant the petition.

At the outset, a glimpse at the landmark case of Senate v. Ermita18 becomes

imperative. Senate draws in bold strokes the distinction between
the legislative and oversight powers of the Congress, as embodied under Sections 21 and 22,
respectively, of Article VI of the Constitution, to wit:

SECTION 21. The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance with its duly published
rules of procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.

SECTION 22. The heads of department may upon their own initiative, with the consent of the
President, or upon the request of either House, or as the rules of each House shall provide,
appear before and be heard by such House on any matter pertaining to their departments.
Written questions shall be submitted to the President of the Senate or the Speaker of the
House of Representatives at least three days before their scheduled appearance.
Interpellations shall not be limited to written questions, but may cover matters related thereto.
When the security of the state or the public interest so requires and the President so states
in writing, the appearance shall be conducted in executive session.
Senate cautions that while the above provisions are closely related and complementary to each
other, they should not be considered as pertaining to the same power of Congress. Section 21
relates to the power to conduct inquiries in aid of legislation. Its aim is to elicit information that may
be used for legislation. On the other hand, Section 22 pertains to the power to conduct a question
hour, the objective of which is to obtain information in pursuit of Congress' oversight
function.19 Simply stated, while both powers allow Congress or any of its committees to conduct
inquiry, their objectives are different.

This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike
in Section 21, Congress cannot compel the appearance of executive officials under Section 22. The
Court's pronouncement in Senate v. Ermita20 is clear:

When Congress merely seeks to be informed on how department heads are implementing
the statutes which it has issued, its right to such information is not as imperative as that of
the President to whom, as Chief Executive, such department heads must give a report of
their performance as a matter of duty. In such instances, Section 22, in keeping with the
separation of powers, states that Congress may only request their appearance. Nonetheless,
when the inquiry in which Congress requires their appearance is 'in aid of legislation' under
Section 21, the appearance is mandatory for the same reasons stated in Arnault.

In fine, the oversight function of Congress may be facilitated by compulsory process

only to the extent that it is performed in pursuit of legislation. This is consistent with the
intent discerned from the deliberations of the Constitutional Commission

Ultimately, the power of Congress to compel the appearance of executive officials under
section 21 and the lack of it under Section 22 find their basis in the principle of separation of
powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate
the power of Congress to legislate by refusing to comply with its demands for information.
(Emphasis supplied.)

The availability of the power of judicial review to resolve the issues raised in this case has also been
settled in Senate v. Ermita, when it held:

As evidenced by the American experience during the so-called "McCarthy era," however, the
right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to
abuse than executive or judicial power. It may thus be subjected to judicial review pursuant
to the Court's certiorari powers under Section 1, Article VIII of the Constitution.

Hence, this decision.

The Communications Elicited by the Three (3) Questions are Covered by Executive Privilege

We start with the basic premises where the parties have conceded.

The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the
proposition that a legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or change. 21 Inevitably, adjunct
thereto is the compulsory process to enforce it. But, the power, broad as it is, has limitations. To be
valid, it is imperative that it is done in accordance with the Senate or House duly published rules of
procedure and that the rights of the persons appearing in or affected by such inquiries be respected.

The power extends even to executive officials and the only way for them to be exempted is through
a valid claim of executive privilege.22 This directs us to the consideration of the question -- is there a
recognized claim of executive privilege despite the revocation of E.O. 464?

A- There is a Recognized Claim

of Executive Privilege Despite the
Revocation of E.O. 464

At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way diminish our
concept of executive privilege. This is because this concept has Constitutional underpinnings. Unlike
the United States which has further accorded the concept with statutory status by enacting
the Freedom of Information Act23 and the Federal Advisory Committee Act,24 the Philippines has
retained its constitutional origination, occasionally interpreted only by this Court in various cases.
The most recent of these is the case of Senate v. Ermita where this Court declared unconstitutional
substantial portions of E.O. 464. In this regard, it is worthy to note that Executive Ermita's Letter
dated November 15, 2007 limits its bases for the claim of executive privilege to Senate v.
Ermita, Almonte v. Vasquez,25 and Chavez v. PEA.26 There was never a mention of E.O. 464.

While these cases, especially Senate v. Ermita,27 have comprehensively discussed the concept of
executive privilege, we deem it imperative to explore it once more in view of the clamor for this Court
to clearly define the communications covered by executive privilege.

The Nixon and post-Watergate cases established the broad contours of the presidential
communications privilege.28 In United States v. Nixon,29 the U.S. Court recognized a great public
interest in preserving "the confidentiality of conversations that take place in the President's
performance of his official duties." It thus considered presidential communications as
"presumptively privileged." Apparently, the presumption is founded on the "President's
generalized interest in confidentiality." The privilege is said to be necessary to guarantee the
candor of presidential advisors and to provide "the President and those who assist him… with
freedom to explore alternatives in the process of shaping policies and making decisions and
to do so in a way many would be unwilling to express except privately."

In In Re: Sealed Case,30 the U.S. Court of Appeals delved deeper. It ruled that there are two (2)
kinds of executive privilege; one is the presidential communications privilege and, the other is
the deliberative process privilege. The former pertains to "communications, documents or
other materials that reflect presidential decision-making and deliberations and that the
President believes should remain confidential." The latter includes 'advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated."

Accordingly, they are characterized by marked distinctions. Presidential communications

privilege applies to decision-making of the President while, the deliberative process privilege,
to decision-making of executive officials. The first is rooted in the constitutional principle of
separation of power and the President's unique constitutional role; the second on common law
privilege. Unlike the deliberative process privilege, the presidential communications
privilege applies to documents in their entirety, and covers final and post-decisional materials
as well as pre-deliberative ones31 As a consequence, congressional or judicial negation of
the presidential communications privilege is always subject to greater scrutiny than denial of
the deliberative process privilege.
Turning on who are the officials covered by the presidential communications privilege, In Re:
Sealed Case confines the privilege only to White House Staff that has "operational proximity" to
direct presidential decision-making. Thus, the privilege is meant to encompass only those functions
that form the core of presidential authority, involving what the court characterized as "quintessential
and non-delegable Presidential power," such as commander-in-chief power, appointment and
removal power, the power to grant pardons and reprieves, the sole-authority to receive ambassadors
and other public officers, the power to negotiate treaties, etc.32

The situation in Judicial Watch, Inc. v. Department of Justice33 tested the In Re: Sealed
Case principles. There, while the presidential decision involved is the exercise of the President's
pardon power, a non-delegable, core-presidential function, the Deputy Attorney General and the
Pardon Attorney were deemed to be too remote from the President and his senior White House
advisors to be protected. The Court conceded that

functionally those officials were performing a task directly related to the President's pardon power,
but concluded that an organizational test was more appropriate for confining the potentially broad
sweep that would result from the In Re: Sealed Case's functional test. The majority concluded that,
the lesser protections of the deliberative process privilege would suffice. That privilege was,
however, found insufficient to justify the confidentiality of the 4,341 withheld documents.

But more specific classifications of communications covered by executive privilege are made in older
cases. Courts ruled early that the Executive has a right to withhold documents that might
reveal military or state secrets,34 identity of government informers in some
circumstances,,35 and information related to pending investigations.36 An area where the
privilege is highly revered is in foreign relations. In United States v. Curtiss-Wright Export
Corp.37 the U.S. Court, citing President George Washington, pronounced:

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

Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v. PCGG38,
this Court held that there is a "governmental privilege against public disclosure with respect to state
secrets regarding military, diplomatic and other security matters." In Chavez v. PEA,39 there is also a
recognition of the confidentiality of Presidential conversations, correspondences, and discussions in
closed-door Cabinet meetings. In Senate v. Ermita, the concept of presidential communications
privilege is fully discussed.

As may be gleaned from the above discussion, the claim of executive privilege is highly recognized
in cases where the subject of inquiry relates to a power textually committed by the Constitution to the
President, such as the area of military and foreign relations. Under our Constitution, the President is
the repository of the commander-in-chief,40 appointing,41 pardoning,42 and diplomatic43 powers.
Consistent with the doctrine of separation of powers, the information relating to these powers may
enjoy greater confidentiality than others.
The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the
elements of presidential communications privilege, to wit:

1) The protected communication must relate to a "quintessential and non-delegable

presidential power."

2) The communication must be authored or "solicited and received" by a close advisor of the
President or the President himself. The judicial test is that an advisor must be in "operational
proximity" with the President.

3) The presidential communications privilege remains a qualified privilege that may be

overcome by a showing of adequate need, such that the information sought "likely contains
important evidence" and by the unavailability of the information elsewhere by an appropriate
investigating authority.44

In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the
ground that the communications elicited by the three (3) questions "fall under conversation and
correspondence between the President and public officials" necessary in "her executive and policy
decision-making process" and, that "the information sought to be disclosed might impair our
diplomatic as well as economic relations with the People's Republic of China." Simply put, the bases
are presidential communications privilege and executive privilege on matters relating
to diplomacy or foreign relations.

Using the above elements, we are convinced that, indeed, the communications elicited by the three
(3) questions are covered by the presidential communications privilege. First, the
communications relate to a "quintessential and non-delegable power" of the President, i.e. the power
to enter into an executive agreement with other countries. This authority of the President to enter
into executive agreements without the concurrence of the Legislature has traditionally been
recognized in Philippine jurisprudence.45 Second, the communications are "received" by a close
advisor of the President. Under the "operational proximity" test, petitioner can be considered a close
advisor, being a member of President Arroyo's cabinet. And third, there is no adequate showing of a
compelling need that would justify the limitation of the privilege and of the unavailability of the
information elsewhere by an appropriate investigating authority.

The third element deserves a lengthy discussion.

United States v. Nixon held that a claim of executive privilege is subject to balancing against other
interest. In other words, confidentiality in executive privilege is not absolutely protected by the
Constitution. The U.S. Court held:

[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level
communications, without more, can sustain an absolute, unqualified Presidential privilege of
immunity from judicial process under all circumstances.

The foregoing is consistent with the earlier case of Nixon v. Sirica,46 where it was held
that presidential communications are presumptively privileged and that the presumption can be
overcome only by mere showing of public need by the branch seeking access to conversations. The
courts are enjoined to resolve the competing interests of the political branches of the government "in
the manner that preserves the essential functions of each Branch."47 Here, the record is bereft of any
categorical explanation from respondent Committees to show a compelling or citical need for the
answers to the three (3) questions in the enactment of a law. Instead, the questions veer more
towards the exercise of the legislative oversight function under Section 22 of Article VI rather than
Section 21 of the same Article. Senate v. Ermita ruled that the "the oversight function of
Congress may be facilitated by compulsory process only to the extent that it is performed in
pursuit of legislation." It is conceded that it is difficult to draw the line between an inquiry in aid of
legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will
depend on the content of the questions and the manner the inquiry is conducted.

Respondent Committees argue that a claim of executive privilege does not guard against a possible
disclosure of a crime or wrongdoing. We see no dispute on this. It is settled in United States v.
Nixon48 that "demonstrated, specific need for evidence in pending criminal trial" outweighs the
President's "generalized interest in confidentiality." However, the present case's distinction with
the Nixon case is very evident. In Nixon, there is a pending criminal proceeding where the
information is requested and it is the demands of due process of law and the fair administration of
criminal justice that the information be disclosed. This is the reason why the U.S. Court was quick to
"limit the scope of its decision." It stressed that it is "not concerned here with the balance
between the President's generalized interest in confidentiality x x x and congressional
demands for information." Unlike in Nixon, the information here is elicited, not in a criminal
proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of
the claim of executive privilege depends not only on the ground invoked but, also, on the procedural
setting or the context in which the claim is made. Furthermore, in Nixon, the President did not
interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In
the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds
of presidential communications privilege in relation to her executive and policy decision-making
process and diplomatic secrets.

The respondent Committees should cautiously tread into the investigation of matters which may
present a conflict of interest that may provide a ground to inhibit the Senators participating in the
inquiry if later on an impeachment proceeding is initiated on the same subject matter of the present
Senate inquiry. Pertinently, in Senate Select Committee on Presidential Campaign Activities v.
Nixon,49 it was held that since an impeachment proceeding had been initiated by a House
Committee, the Senate Select Committee's immediate oversight need for five presidential tapes
should give way to the House Judiciary Committee which has the constitutional authority to inquire
into presidential impeachment. The Court expounded on this issue in this wise:

It is true, of course, that the Executive cannot, any more than the other branches of
government, invoke a general confidentiality privilege to shield its officials and employees
from investigations by the proper governmental institutions into possible criminal wrongdoing.
The Congress learned this as to its own privileges in Gravel v. United States, as did the
judicial branch, in a sense, in Clark v. United States, and the executive branch itself in Nixon
v. Sirica. But under Nixon v. Sirica, the showing required to overcome the presumption
favoring confidentiality turned, not on the nature of the presidential conduct that the
subpoenaed material might reveal, but, instead, on the nature and appropriateness of the
function in the performance of which the material was sought, and the degree to
which the material was necessary to its fulfillment. Here also our task requires and
our decision implies no judgment whatever concerning possible presidential
involvement in culpable activity. On the contrary, we think the sufficiency of the
Committee's showing must depend solely on whether the subpoenaed evidence is
demonstrably critical to the responsible fulfillment of the Committee's functions.

In its initial briefs here, the Committee argued that it has shown exactly this. It contended that
resolution, on the basis of the subpoenaed tapes, of the conflicts in the testimony before it
'would aid in a determination whether legislative involvement in political campaigns is
necessary' and 'could help engender the public support needed for basic reforms in our
 electoral system.' Moreover, Congress has, according to the Committee, power to oversee
the operations of the executive branch, to investigate instances of possible corruption and
malfeasance in office, and to expose the results of its investigations to public view. The
Committee says that with respect to Watergate-related matters, this power has been
delegated to it by the Senate, and that to exercise its power responsibly, it must have access
to the subpoenaed tapes.

We turn first to the latter contention. In the circumstances of this case, we need neither deny
that the Congress may have, quite apart from its legislative responsibilities, a general
oversight power, nor explore what the lawful reach of that power might be under the
Committee's constituent resolution. Since passage of that resolution, the House Committee
on the Judiciary has begun an inquiry into presidential impeachment. The investigative
authority of the Judiciary Committee with respect to presidential conduct has an express
constitutional source. x x x We have been shown no evidence indicating that Congress
itself attaches any particular value to this interest. In these circumstances, we think
the need for the tapes premised solely on an asserted power to investigate and inform
cannot justify enforcement of the Committee's subpoena.

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

Respondent Committees further contend that the grant of petitioner's claim of executive privilege
violates the constitutional provisions on the right of the people to information on matters of public
concern.50 We might have agreed with such contention if petitioner did not appear before them at all.
But petitioner made himself available to them during the September 26 hearing, where he was
questioned for eleven (11) hours. Not only that, he expressly manifested his willingness to answer
more questions from the Senators, with the exception only of those covered by his claim of executive
privilege.

The right to public information, like any other right, is subject to limitation. Section 7 of Article III
provides:

The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be
provided by law.
The provision itself expressly provides the limitation, i.e. as may be provided by law. Some of
these laws are Section 7 of Republic Act (R.A.) No. 6713,51 Article 22952 of the Revised Penal Code,
Section 3 (k)53 of R.A. No. 3019, and Section 24(e)54 of Rule 130 of the Rules of Court. These are in
addition to what our body of jurisprudence classifies as confidential55 and what our Constitution
considers as belonging to the larger concept of executive privilege. Clearly, there is a recognized
public interest in the confidentiality of certain information. We find the information subject of this case
belonging to such kind.

More than anything else, though, the right of Congress or any of its Committees to obtain
information in aid of legislation cannot be equated with the people's right to public information. The
former cannot claim that every legislative inquiry is an exercise of the people's right to information.
The distinction between such rights is laid down in Senate v. Ermita:

There are, it bears noting, clear distinctions between the right of Congress to information
which underlies the power of inquiry and the right of people to information on matters of
public concern. For one, the demand of a citizen for the production of documents pursuant to
his right to information does not have the same obligatory force as a subpoena duces
tecum issued by Congress. Neither does the right to information grant a citizen the power to
exact testimony from government officials. These powers belong only to Congress, not to an
individual citizen.

Thus, while Congress is composed of representatives elected by the people, it does

not follow, except in a highly qualified sense, that in every exercise of its power of
inquiry, the people are exercising their right to information.

The members of respondent Committees should not invoke as justification in their exercise of power
a right properly belonging to the people in general. This is because when they discharge their power,
they do so as public officials and members of Congress. Be that as it may, the right to information
must be balanced with and should give way, in appropriate cases, to constitutional precepts
particularly those pertaining to delicate interplay of executive-legislative powers and privileges which
is the subject of careful review by numerous decided cases.

B- The Claim of Executive Privilege

is Properly Invoked

We now proceed to the issue -- whether the claim is properly invoked by the
President. Jurisprudence teaches that for the claim to be properly invoked, there must be a formal
claim of privilege, lodged by the head of the department which has control over the matter." 56 A
formal and proper claim of executive privilege requires a "precise and certain reason" for preserving
their confidentiality.57

The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It
serves as the formal claim of privilege. There, he expressly states that "this Office is constrained
to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has
advised Secretary Neri accordingly." Obviously, he is referring to the Office of the President. That
is more than enough compliance. In Senate v. Ermita, a less categorical letter was even adjudged to
be sufficient.

With regard to the existence of "precise and certain reason," we find the grounds relied upon by
Executive Secretary Ermita specific enough so as not "to leave respondent Committees in the dark
on how the requested information could be classified as privileged." The case of Senate v.
Ermita only requires that an allegation be made "whether the information demanded involves military
or diplomatic secrets, closed-door Cabinet meetings, etc." The particular ground must only be
specified. The enumeration is not even intended to be comprehensive." 58 The following statement of
grounds satisfies the requirement:

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

At any rate, as held further in Senate v. Ermita, 59 the Congress must not require the executive to
state the reasons for the claim with such particularity as to compel disclosure of the information
which the privilege is meant to protect. This is a matter of respect to a coordinate and co-equal
department.

II

Respondent Committees Committed Grave Abuse of Discretion

in Issuing the Contempt Order

Grave abuse of discretion means "such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, or, in other words where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility and it must be so patent and gross as to
amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at
all in contemplation of law."60

It must be reiterated that when respondent Committees issued the show cause Letter dated
November 22, 2007, petitioner replied immediately, manifesting that it was not his intention to ignore
the Senate hearing and that he thought the only remaining questions were the three (3) questions he
claimed to be covered by executive privilege. In addition thereto, he submitted Atty. Bautista's letter,
stating that his non-appearance was upon the order of the President and specifying the reasons why
his conversations with President Arroyo are covered by executive privilege. Both correspondences
include an expression of his willingness to testify again, provided he "be furnished in
advance" copies of the questions. Without responding to his request for advance list of questions,
respondent Committees issued the Order dated January 30, 2008, citing him in contempt of
respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-
At-Arms until such time that he would appear and give his testimony. Thereupon, petitioner filed a
motion for reconsideration, informing respondent Committees that he had filed the present petition
for certiorari.

Respondent Committees committed grave abuse of discretion in issuing the contempt Order in view
of five (5) reasons.

First, there being a legitimate claim of executive privilege, the issuance of the contempt Order
suffers from constitutional infirmity.

Second, respondent Committees did not comply with the requirement laid down in Senate v.
Ermita that the invitations should contain the "possible needed statute which prompted the need for
the inquiry," along with "the usual indication of the subject of inquiry and the questions relative to
and in furtherance thereof." Compliance with this requirement is imperative, both under Sections 21
and 22 of Article VI of the Constitution. This must be so to ensure that the rights of both
persons appearing in or affected by such inquiry are respected as mandated by said Section 21
and by virtue of the express language of Section 22. Unfortunately, despite petitioner's repeated
demands, respondent Committees did not send him an advance list of questions.

Third, a reading of the transcript of respondent Committees' January 30, 2008 proceeding reveals
that only a minority of the members of the Senate Blue Ribbon Committee was present during the
deliberation. 61 Section 18 of the Rules of Procedure Governing Inquiries in Aid of
Legislation provides that:

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

Clearly, the needed vote is a majority of all the members of the Committee. Apparently, members
who did not actually participate in the deliberation were made to sign the contempt Order. Thus,
there is a cloud of doubt as to the validity of the contempt Order dated January 30, 2008. We quote
the pertinent portion of the transcript, thus:

THE CHAIRMAN (SEN. CAYETANO, A). For clarification. x x x The Chair will call either
a caucus or will ask the Committee on Rules if there is a problem. Meaning, if we do
not have the sufficient numbers. But if we have a sufficient number, we will just hold a
caucus to be able to implement that right away because…Again, our Rules provide
that any one held in contempt and ordered arrested, need the concurrence of a
majority of all members of the said committee and we have three committees
conducting this.

So thank you very much to the members…

SEN. PIMENTEL. Mr. Chairman.

THE CHAIRMAN (SEN. CAYETANO,A). May I recognize the Minority Leader and give
him the floor, Senator Pimentel.

SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting the other
committees. But I am of the opinion that the Blue Ribbon Committee is the lead
committee, and therefore, it should have preference in enforcing its own decisions.
Meaning to say, it is not something that is subject to consultation with other
committees. I am not sure that is the right interpretation. I think that once we decide
here, we enforce what we decide, because otherwise, before we know it, our
determination is watered down by delay and, you know, the so-called "consultation"
that inevitably will have to take place if we follow the premise that has been explained.

So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not forget it's the
lead committee here, and therefore, the will of the lead committee prevails over all the other,
you, know reservations that other committees might have who are only secondary or even
tertiary committees, Mr. Chairman.

THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very much to the Minority Leader. And I
agree with the wisdom of his statements. I was merely mentioning that under Section 6 of the
Rules of the Committee and under Section 6, "The Committee by a vote of a majority of all
its members may punish for contempt any witness before it who disobeys any order of the
Committee."
 So the Blue Ribbon Committee is more than willing to take that responsibility. But we only
have six members here today, I am the seventh as chair and so we have not met that
number. So I am merely stating that, sir, that when we will prepare the documentation, if a
majority of all members sign and I am following the Sabio v. Gordon rule wherein I do
believe, if I am not mistaken, Chairman Gordon prepared the documentation and then either
in caucus or in session asked the other members to sign. And once the signatures are
obtained, solely for the purpose that Secretary Neri or Mr. Lozada will not be able to legally
question our subpoena as being insufficient in accordance with law.

SEN. PIMENTEL. Mr. Chairman, the caution that the chair is suggesting is very well-taken.
But I'd like to advert to the fact that the quorum of the committee is only two as far as I
remember. Any two-member senators attending a Senate committee hearing provide that
quorum, and therefore there is more than a quorum demanded by our Rules as far as we are
concerned now, and acting as Blue Ribbon Committee, as Senator Enrile pointed out. In any
event, the signatures that will follow by the additional members will only tend to strengthen
the determination of this Committee to put its foot forward – put down on what is happening
in this country, Mr. Chairman, because it really looks terrible if the primary Committee of the
Senate, which is the Blue Ribbon Committee, cannot even sanction people who openly defy,
you know, the summons of this Committee. I know that the Chair is going through an
agonizing moment here. I know that. But nonetheless, I think we have to uphold, you know,
the institution that we are representing because the alternative will be a disaster for all of us,
Mr. Chairman. So having said that, I'd like to reiterate my point.

THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100 percent with the intentions
of the Minority Leader. But let me very respectfully disagree with the legal
requirements. Because, yes, we can have a hearing if we are only two but both under
Section 18 of the Rules of the Senate and under Section 6 of the Rules of the Blue
Ribbon Committee, there is a need for a majority of all members if it is a case of
contempt and arrest. So, I am simply trying to avoid the court rebuking the Committee,
which will instead of strengthening will weaken us. But I do agree, Mr. Minority Leader, that
we should push for this and show the executive branch that the well-decided – the issue has
been decided upon the Sabio versus Gordon case. And it's very clear that we are all allowed
to call witnesses. And if they refure or they disobey not only can we cite them in contempt
and have them arrested. x x x 62

Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated
Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the "duly
published rules of procedure." We quote the OSG's explanation:

The phrase 'duly published rules of procedure' requires the Senate of every Congress to
publish its rules of procedure governing inquiries in aid of legislation because every Senate
is distinct from the one before it or after it. Since Senatorial elections are held every three (3)
years for one-half of the Senate's membership, the composition of the Senate also changes
by the end of each term. Each Senate may thus enact a different set of rules as it may deem
fit. Not having published its Rules of Procedure, the subject hearings in aid of
legislation conducted by the 14th Senate, are therefore, procedurally infirm.

And fifth, respondent Committees' issuance of the contempt Order is arbitrary and precipitate. It
must be pointed out that respondent Committees did not first pass upon the claim of executive
privilege and inform petitioner of their ruling. Instead, they curtly dismissed his explanation as
"unsatisfactory" and simultaneously issued the Order citing him in contempt and ordering his
immediate arrest and detention.
A fact worth highlighting is that petitioner is not an unwilling witness. He manifested several times
his readiness to testify before respondent Committees. He refused to answer the three (3) questions
because he was ordered by the President to claim executive privilege. It behooves respondent
Committees to first rule on the claim of executive privilege and inform petitioner of their finding
thereon, instead of peremptorily dismissing his explanation as "unsatisfactory." Undoubtedly,
respondent Committees' actions constitute grave abuse of discretion for being arbitrary and for
denying petitioner due process of law. The same quality afflicted their conduct when they (a)
disregarded petitioner's motion for reconsideration alleging that he had filed the present petition
before this Court and (b) ignored petitioner's repeated request for an advance list of questions, if
there be any aside from the three (3) questions as to which he claimed to be covered by executive
privilege.

Even the courts are repeatedly advised to exercise the power of contempt judiciously and sparingly
with utmost self-restraint with the end in view of utilizing the same for correction and preservation of
the dignity of the court, not for retaliation or vindication.63 Respondent Committees should have
exercised the same restraint, after all petitioner is not even an ordinary witness. He holds a high
position in a co-equal branch of government.

In this regard, it is important to mention that many incidents of judicial review could have been
avoided if powers are discharged with circumspection and deference. Concomitant with the doctrine
of separation of powers is the mandate to observe respect to a co-equal branch of the government.

One last word.

The Court was accused of attempting to abandon its constitutional duty when it required the parties
to consider a proposal that would lead to a possible compromise. The accusation is far from the
truth. The Court did so, only to test a tool that other jurisdictions find to be effective in settling similar
cases, to avoid a piecemeal consideration of the questions for review and to avert a constitutional
crisis between the executive and legislative branches of government.

In United States v. American Tel. & Tel Co.,64 the court refrained from deciding the case because of
its desire to avoid a resolution that might disturb the balance of power between the two branches
and inaccurately reflect their true needs. Instead, it remanded the record to the District Court for
further proceedings during which the parties are required to negotiate a settlement. In the
subsequent case of United States v. American Tel. &Tel Co.,65 it was held that "much of this spirit of
compromise is reflected in the generality of language found in the Constitution." It proceeded to
state:

Under this view, the coordinate branches do not exist in an exclusively adversary relationship
to one another when a conflict in authority arises. Rather each branch should take
cognizance of an implicit constitutional mandate to seek optimal accommodation through a
realistic evaluation of the needs of the conflicting branches in the particular fact situation.

It thereafter concluded that: "The Separation of Powers often impairs efficiency, in terms of
dispatch and the immediate functioning of government. It is the long-term staying power of
government that is enhanced by the mutual accommodation required by the separation of
powers."

In rendering this decision, the Court emphasizes once more that the basic principles of constitutional
law cannot be subordinated to the needs of a particular situation. As magistrates, our mandate is to
rule objectively and dispassionately, always mindful of Mr. Justice Holmes' warning on the dangers
inherent in cases of this nature, thus:
 "some accident of immediate and overwhelming interest…appeals to the feelings and
distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which
makes what previously was clear seem doubtful, and before which even well settled
principles of law will bend."66

In this present crusade to "search for truth," we should turn to the fundamental constitutional
principles which underlie our tripartite system of government, where the Legislature enacts the law,
the Judiciary interprets it and the Executive implements it. They are considered separate, co-equal,
coordinate and supreme within their respective spheres but, imbued with a system of checks and
balances to prevent unwarranted exercise of power. The Court's mandate is to preserve these
constitutional principles at all times to keep the political branches of government within constitutional
bounds in the exercise of their respective powers and prerogatives, even if it be in the search for
truth. This is the only way we can preserve the stability of our democratic institutions and uphold the
Rule of Law.

WHEREFORE, the petition is hereby GRANTED. The subject Order dated January 30, 2008,
citing petitioner Romulo L. Neri in contempt of the Senate Committees and directing his arrest and
detention, is hereby nullified.

SO ORDERED.

Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales,

Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Brion, JJ., concur.

Footnotes

1
Rollo, pp. 12-14.

2
Rollo, pp. 85-86. Through the Supplemental Petition for Certiorari (With Urgent Application
for Temporary Restraining Order/Preliminary Injunction).

3
Chaired by Hon. Senator Alan Peter S. Cayetano.

4
Chaired by Hon. Senator Manuel A. Roxas II.

5
Chaired by Hon. Senator Rodolfo G. Biazon.

6
Transcript of the September 26, 2007 Hearing of the respondent Committees, pp.91-92.

7
Id., pp. 114-115.

8
Id., pp. 276-277.

9
See Letter dated January 30, 2008.

10
488 SCRA 1 (2006).
11
345 U.S. 1 (1953).

12
Section 7. Prohibited Acts and Transactions. – In addition to acts and omissions of public
officials and employees now prescribed in the Constitution and existing laws, the following
shall constitute prohibited acts and transactions of any public official and employee and are
hereby declared to be unlawful: x x x

(c) Disclosure and/or misuse of confidential information. -

Public officials and employees shall not use or divulge, confidential or classified
information officially known to them by reason of their office and not made available
to the public, either:

(1) To further their private interests, or give undue advantage to anyone; or

(2) To prejudice the public interest.

13
SEC. 24. Disqualification by reason of privileged communication. – The following persons
cannot testify as to matters learned in confidence in the following cases. (e) A public officer
cannot be examined during his term of office or afterwards, as to communications made to
him in official confidence, when the court finds that the public interest would suffer by
disclosure.

14
TSN of the Oral Argument, March 4, 2008, p. 455.

15
(1) Minutes of all meetings of the three (3) committees held in January and February,
2008; (2) Notice for joint meeting of three (3) committees held on 30 January 2008 duly
received by the members of the committees; (3) Minute Books of the three (3)
committees; (4) Composition of the three (3) committees; and (5) Other documents required
of them in the course of the oral argument.

16
See Manifestation, rollo, pp.170-174.

17
Supra..

18
Supra.

19
Ibid.

20
Ibid.

21
Arnault v. Nazareno, 87 Phil 32 (1950)

22
Senate v. Ermita, p. 58.

23
5 U.S. C. § 552

24
51 U.S. C. app.

25
433 Phil. 506 (2002).
26
G.R. No. 130716, December 9, 1998, (360 SCRA 132 ).

27
Supra.

CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law,
28

Practice and Recent Developments at p. 2.

29
418 U.S. 683.

30
In Re: Sealed Case No. 96-3124, June 17, 1997.

31
Id.

CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law,
32

Practice and Recent Developments at pp. 18-19.

33
365 F.3d 1108, 361 U.S.App.D.C. 183, 64 Fed. R. Evid. Serv. 141.

See United States v. Reynolds, 345 U.S. 1, 6-8 (1953); Chicago v. Airlines, Inc. v.
34

Waterman Steamship Corp., 333 U.S. 103, 111; Totten v. United States, 92 U.S. 105, 106-
107 (1875).

35
Roviaro v. United States, 353 U.S. 53, 59-61.

See Friedman v. Bache Halsey Stuart Shields, Inc. 738 F. 2d 1336,1341-43 (D.C. Cir.
36

1984).

37
14 F. Supp. 230, 299 U.S. 304 (1936).

38
360 Phil. 133 (1998).

39
Supra.

40
Section 18, Article VII.

41
Section 16, Article VII.

42
Section 19, Article VII.

43
Section 20 and 21, Article VII.

CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law Practice
44

and Recent Developments, supra..

Bernas, S.J., The 1987 Constitution of the Republic of the Philippines, A Commentary,
45

2003 Ed. p. 903.

46
159 U.S. App. DC. 58, 487 F. 2d 700 (D.C. Cir. 1973).

47
U.S. v. Nixon, 418 U.S. 683 (1974)
48
Supra.

49
498 F. 2d 725 (D.C. Cir.1974).

50
Citing Section 7, Article 3 of the Constitution.

51
Section 7. Prohibited Acts and Transactions. – In addition to acts and omissions of public
officials and employees now prescribed in the Constitution and existing laws, the following
shall constitute prohibited acts and transactions of any public official and employee and are
hereby declared to be unlawful: x x x

( c) Disclosure and/or misuse of confidential information. - Public officials and

employees shall not use or divulge, confidential or classified information
officially known to them by reason of their office and not made available to the
public, either:

(1) To further their private interests, or give undue advantage to

anyone; or

(2) To prejudice the public interest.

52
Article 229. Revelation of secrets by an officer. – Any public officer who shall reveal any
secret known to him by reason of his official capacity, or shall wrongfully deliver papers or
copies of papers of which he may have charge and which should not be published, shall
suffer the penalties of prision correccional in its medium and maximum periods, perpetual
special disqualification and a fine not exceeding 2,000 pesos if the revelation of such secrets
or the delivery of such papers shall have caused serious damage to the public interest;
otherwise, the penalties of prision correccional in its minimum period, temporary special
disqualification and a fine not exceeding 500 pesos shall be imposed.

53
Section 3. Corrupt practices of public officers. – In addition to acts or omissions of
public officers already penalized by existing law, the following shall constitute corrupt
practices of any public officer and are hereby declared to be unlawful:

(k) Divulging valuable information of a confidential character, acquired by his office or by him
on account of his official position to unauthorized persons, or releasing such information in
advance of its authorized release date.

54
Sec. 24. Disqualification by reason of privileged communications. – The following persons
cannot testify as to matters learned in confidence in the following case: x x x

(a) A public officer cannot be examined during his term of office or afterwards, as to
communications made to him in official confidence, when the court finds that the public
interest would suffer by the disclosure.

55
In Chavez v. Public Estates Authority, supra., the Supreme Court recognized matters
which the Court has long considered as confidential such as "information on military and
diplomatic secrets, information affecting national security, and information on investigations
of crimes by law enforcement agencies before the prosecution of the accused." It also stated
that "presidential conversations, correspondences, or discussions during close-door cabinet
meetings which, like internal deliberations of the Supreme Court or other collegiate courts, or
 executive sessions of either House of Congress, are recognized as confidential. Such
information cannot be pried-open by a co-equal branch of government.

56
United States v. Reynolds, supra..

57
Unites States v. Article of Drug, 43 F.R.D. at 190.

58
Senate v. Ermita, supra., p. 63.

59
Id., citing U.S. v. Reynolds, 345 U.S. 1, 73 S. Ct. 528, 97 L. Ed. 727, 32 A.L. R. 2d 382
(1953).

Freedom from Debt Coalition v. Energy Regulatory Commission, G.R. No. 161113. June
60

15, 2004.

61
Trancript of the January 30, 2008 proceedings, p. 29.

Trancript of the January 30, 2008 Proceeding of the respondent Senate Committees, pp.
62

26-31.

63
Rodriguez v. Judge Bonifacio, A.M. No. RTJ-99-1510, November 6, 2000, 344 SCRA 519.

64
179 U.S. App. Supp. D.C. 198, 551 F 2d. 384 (1976).

65
567 F 2d 121 (1977).

66
Northern Securities Co. v. United States, 193 U.S. 197, 48 L. Ed. 679, 24 S Ct. 436 (1904).

G.R. No. 187714 March 8, 2011

AQUILINO Q. PIMENTEL, JR., MANUEL B. VILLAR, JOKER P. ARROYO, FRANCIS N.

PANGILINAN, PIA S. CAYETANO, and ALAN PETER S. CAYETANO, Petitioners,
vs.
SENATE COMMITTEE OF THE WHOLE represented by SENATE PRESIDENT JUAN PONCE
ENRILE, Respondents.

DECISION

CARPIO, J.:

The Case

Before the Court is a petition for prohibition1 with prayer for issuance of a writ of preliminary
injunction and/or temporary restraining order filed by Senators Aquilino Q. Pimentel, Jr. (Senator
Pimentel), Manuel B. Villar (Senator Villar), Joker P. Arroyo, Francis N. Pangilinan, Pia S. Cayetano,
and Alan Peter S. Cayetano (petitioners). Petitioners seek to enjoin the Senate Committee of the
Whole (respondent) from conducting further hearings on the complaint filed by Senator Maria Ana
Consuelo A.S. Madrigal (Senator Madrigal) against Senator Villar pursuant to Senate Resolution No.
706 (P.S. Resolution 706) on the alleged double insertion of ₱200 million for the C-5 Road Extension
Project in the 2008 General Appropriations Act.

The Antecedents

On 15 September 2008, Senator Panfilo Lacson (Senator Lacson) delivered a privilege speech
entitled "Kaban ng Bayan, Bantayan!"2 In his privilege speech, Senator Lacson called attention to the
congressional insertion in the 2008 General Appropriations Act, particularly the ₱200 million
appropriated for the construction of the President Carlos P. Garcia Avenue Extension from Sucat
Luzon Expressway to Sucat Road in Parañaque City including Right-of-Way (ROW), and another
₱200 million appropriated for the extension of C-5 road including ROW. Senator Lacson stated that
C-5 is what was formerly called President Carlos P. Garcia Avenue and that the second
appropriation covers the same stretch – from Sucat Luzon Expressway to Sucat Road in Parañaque
City. Senator Lacson inquired from DBM Secretary Rolando Andaya, Jr. about the double entry and
was informed that it was on account of a congressional insertion. Senator Lacson further stated that
when he followed the narrow trail leading to the double entry, it led to Senator Villar, then the Senate
President.

On 8 October 2008, Senator Madrigal introduced P.S. Resolution 706,3 the full text of which reads:

WHEREAS the Senate President has repeatedly and publicly "advocated" (sic) the construction of
the C-5 Road/Pres. C.P. Garcia Avenue Extension linking Sucat Road in Parañaque City to the
South Luzon Expressway;

WHEREAS it was discovered that there was a double insertion of ₱200 million for the C-5 Road
Extension project in the 2008 General Appropriations Act;

WHEREAS Committee on Finance Chair Sen. Juan Ponce Enrile confirmed that the double insertion
for the C-5 Road Extension Project was made by the Senate President;

WHEREAS this double insertion is only the tip of the iceberg;

WHEREAS there is overwhelming evidence to show that the Senate President, from the time he was
member of the House of Representatives, used his influence on the executive to cause the
realignment of the C-5 Road Extension project to ensure that his properties in Barangay San
Dionisio, Parañaque City and Barangays Pulang Lupa and Mayuno Uno, Las Piñas would be
financially benefited by the construction of the new road;

WHEREAS there is overwhelming evidence to show that the Senate President, through his
corporations, negotiated the sale of his properties as roads right of way to the government, the same
properties affected by the projects he proposed;

WHEREAS there is overwhelming evidence to show that the Senate President caused the sale of
his landholdings to government as a grossly overpriced cost prejudicial to other lot owners in the
area, the government, and the Filipino people;

WHEREAS there is overwhelming evidence to show that the Senate President, in the overpriced
sale of another property, used his power and influence to extort from the original landowner the profit
made from the overprice by the Villar owned corporations;

WHEREAS these acts of the Senate President are in direct violation of the Constitution, the Anti-
Graft and Corrupt Practices Act, the Code of Conduct and Ethical Standards of Public Officers;

WHEREAS the Senate President has violated the public trust of the people in order to serve his
personal interests thereby sacrificing the people’s welfare;

WHEREAS the illegal and unethical conduct of the Senate President has betrayed the trust of the
people, and by doing so has shamed the Philippine Senate;

WHEREAS it is incumbent upon the members of the Senate now to reclaim the people’s trust and
confidence and show that the illegal conduct of any of its member, even of its leaders, shall not go
unpunished;

WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, TO DIRECT THE COMMITTEE

ON ETHICS AND PRIVILEGES TO INVESTIGATE THE CONDUCT OF SENATE PRESIDENT
MANUEL B. VILLAR, JR. FOR USING HIS POSITION OF POWER TO INFLUENCE PUBLIC
OFFICIALS IN RELOCATING THE C-5 ROAD EXTENSION PROJECT TO DELIBERATELY PASS
THRU HIS PROPERTIES, AND TO NEGOTIATE THE OVERPRICED PURCHASE OF ROAD
RIGHTS OF WAY THRU SEVERAL PROPERTIES ALSO OWNED BY HIS CORPORATIONS
REDOUNDING IN HUGE PERSONAL FINANCIAL BENEFITS FOR HIM TO THE DETRIMENT OF
THE FILIPINO PEOPLE, THEREBY RESULTING IN A BLATANT CONFLICT OF INTEREST.

Adopted,

(Sgd.)
M.A. MADRIGAL4

On even date, P.S. Resolution 706 was referred to the Committee on Ethics and Privileges (Ethics
Committee) which at that time was composed of the following members:

Sen. Pia S. Cayetano - Chairperson

Sen. Loren Legarda - Member in lieu of Sen. Madrigal

Sen. Joker Arroyo - Member

 Sen. Alan Peter Cayetano- Member

Sen. Miriam Defensor-Santiago- Member

Sen. Gregorio Honasan - Member

Sen. Panfilo Lacson - Inhibited and replaced by Sen. Rodolfo Biazon

On 17 November 2008, Senator Juan Ponce Enrile (Senator Enrile) was elected Senate President.
The Ethics Committee was reorganized with the election of Senator Lacson as Chairperson, and
Senators Richard Gordon, Gregorio Honasan, Loren Legarda, and Mar Roxas as members for the
Majority. On 16 December 2008, Senator Lacson inquired whether the Minority was ready to name
their representatives to the Ethics Committee.5 After consultation with the members of the Minority,
Senator Pimentel informed the body that there would be no member from the Minority in the Ethics
Committee.6 On 26 January 2009, Senator Lacson reiterated his appeal to the Minority to nominate
their representatives to the Ethics Committee.7 Senator Pimentel stated that it is the stand of the
Minority not to nominate any of their members to the Ethics Committee, but he promised to convene
a caucus to determine if the Minority’s decision on the matter is final. 8 Thereafter, the Senate
adopted the Rules of the Senate Committee on Ethics and Privileges (Committee Rules) which was
published in the Official Gazette on 23 March 2009.9

On 20 April 2009, Senator Villar delivered a privilege speech10 where he stated that he would answer
the accusations against him on the floor and not before the Ethics Committee. On 27 April 2009,
Senator Lacson delivered another privilege speech11 where he stated that the Ethics Committee was
not a kangaroo court. However, due to the accusation that the Ethics Committee could not act with
fairness on Senator Villar’s case, Senator Lacson moved that the responsibility of the Ethics
Committee be undertaken by the Senate, acting as a Committee of the Whole. The motion was
approved with ten members voting in favor, none against, and five abstentions. 12

Respondent Senate Committee of the Whole conducted its hearings on 4 May 2009, with eleven
Senators present, and on 7 May 2009, with eight Senators present. On both hearings, petitioners
objected to the application of the Rules of the Ethics Committee to the Senate Committee of the
Whole. In particular, petitioners questioned the determination of the quorum. On 11 May 2009,
petitioners proposed 11 amendments to the Rules of the Ethics Committee that would constitute the
Rules of the Senate Committee of the Whole, out of which three amendments were adopted. On 14
May 2009, Senator Pimentel raised as an issue the need to publish the proposed amended Rules of
the Senate Committee of the Whole. On even date, respondent proceeded with the Preliminary
Inquiry on P.S. Resolution 706. On 18 May 2009, the Chairman submitted a report on the
Preliminary Inquiry with a directive to all Senators to come up with a decision on the preliminary
report on 21 May 2009. On 21 May 2009, respondent declared that there was substantial evidence
to proceed with the adjudicatory hearing. The preliminary conference was set on 26 May 2009.

Petitioners came to this Court for relief, raising the following grounds:

1. The transfer of the complaint against Senator Villar from the Ethics Committee to the
Senate Committee of the Whole is violative of Senator Villar’s constitutional right to equal
protection;

2. The Rules adopted by the Senate Committee of the Whole for the investigation of the
complaint filed by Senator Madrigal against Senator Villar is violative of Senator Villar’s right
to due process and of the majority quorum requirement under Art. VI, Sec. 16(2) of the
Constitution; and
 3. The Senate Committee of the Whole likewise violated the due process clause of the
Constitution when it refused to publish the Rules of the Senate Committee of the Whole in
spite of its own provision [which] require[s] its effectivity upon publication. 13

In its Comment, respondent argues that:

1. The instant petition should be dismissed for failure to join or implead an indispensable
party. In the alternative, the instant petition should be archived until such time that the said
indispensable party has been joined or impleaded and afforded the opportunity to be heard;

2. There was no grave abuse of discretion on the part of respondent Committee;

3. Petitioners are not entitled to a writ of prohibition for failure to prove grave abuse of
discretion on the part of respondent Committee of the Whole;

4. The principle of separation of powers must be upheld;

5. The instant petition must be dismissed for being premature. Petitioners failed to observe
the doctrine or primary jurisdiction or prior resort;

6. It is within the power of Congress to discipline its members for disorderly behavior;

7. The determination of what constitutes disorderly behavior is a political question which

exclusively pertains to Congress;

8. The Internal Rules of the Senate are not subject to judicial review in the absence of grave
abuse of discretion; [and]

9. The Rules of the Ethics Committee, which have been duly published and adopted[,] allow
the adoption of supplementary rules to govern adjudicatory hearings.14

The Issues

The issues for the Court’s resolution are the following:

1. Whether Senator Madrigal, who filed the complaint against Senator Villar, is an
indispensable party in this petition;

2. Whether the petition is premature for failure to observe the doctrine of primary jurisdiction
or prior resort;

3. Whether the transfer of the complaint against Senator Villar from the Ethics Committee to
the Senate Committee of the Whole is violative of Senator Villar’s right to equal protection;

4. Whether the adoption of the Rules of the Ethics Committee as Rules of the Senate
Committee of the Whole is a violative of Senator Villar’s right to due process and of the
majority quorum requirement under Art. VI, Section 16(2) of the Constitution; and

5. Whether publication of the Rules of the Senate Committee of the Whole is required for
their effectivity.
The Ruling of this Court

Indispensable Party

Section 7, Rule 3 of the 1997 Rules of Civil Procedure provides:

SEC. 7 – Compulsory joinder of indispensable parties. - Parties in interest without whom no final
determination can be had of an action shall be joined as plaintiffs or defendants.

The test to determine if a party is an indispensable party is as follows:

An indispensable party is a party who has an interest in the controversy or subject matter that a final
adjudication cannot be made, in his absence, without injuring or affecting that interest, a party who
has not only an interest in the subject matter of the controversy, but also has an interest of such
nature that a final decree cannot be made without affecting his interest or leaving the controversy in
such a condition that its final determination may be wholly inconsistent with equity and good
conscience. It has also been considered that an indispensable party is a person in whose absence
there cannot be a determination between the parties already before the court which is effective,
complete or equitable. Further, an indispensable party is one who must be included in an action
before it may properly go forward.

A person who is not an indispensable party, however, if his interest in the controversy or subject
matter is separable from the interest of the other parties, so that it will not necessarily be directly or
injuriously affected by a decree which does complete justice between them. Also, a person is not an
indispensable party if his presence would merely permit a complete relief between him and those
already parties to the action, or if he has no interest in the subject matter of the action. It is not a
sufficient reason to declare a person to be an indispensable party that his presence will avoid
multiple litigation.15

In this case, Senator Madrigal is not an indispensable party to the petition before the Court. While it
may be true that she has an interest in the outcome of this case as the author of P.S. Resolution
706, the issues in this case are matters of jurisdiction and procedure on the part of the Senate
Committee of the Whole which can be resolved without affecting Senator Madrigal’s interest. The
nature of Senator Madrigal’s interest in this case is not of the nature that this case could not be
resolved without her participation.1awphi1

Doctrine of Primary Jurisdiction

Respondent asserts that the doctrine of primary jurisdiction "simply calls for the determination of
administrative questions, which are ordinarily questions of fact, by administrative agencies rather
than by courts of justice."16 Citing Pimentel v. HRET,17 respondent avers that primary recourse of
petitioners should have been to the Senate and that this Court must uphold the separation of powers
between the legislative and judicial branches of the government.

The doctrine of primary jurisdiction does not apply to this case. The Court has ruled:

x x x It may occur that the Court has jurisdiction to take cognizance of a particular case, which
means that the matter involved is also judicial in character. However, if the case is such that its
determination requires the expertise, specialized skills and knowledge of the proper administrative
bodies because technical matters or intricate questions of fact are involved, then relief must first be
obtained in an administrative proceeding before a remedy will be supplied by the courts even though
the matter is within the proper jurisdiction of the court. x x x18

The issues presented here do not require the expertise, specialized skills and knowledge of
respondent for their resolution. On the contrary, the issues here are purely legal questions which are
within the competence and jurisdiction of the Court, and not an administrative agency or the Senate
to resolve.19

As regards respondent’s invocation of separation of powers, the Court reiterates that "the inviolate
doctrine of separation of powers among the legislative, executive or judicial branches of government
by no means prescribes for absolute autonomy in the discharge by each of that part of the
governmental power assigned to it by the sovereign people."20 Thus, it has been held that "the power
of judicial review is not so much power as it is [a] duty imposed on this Court by the Constitution and
that we would be remiss in the performance of that duty if we decline to look behind the barriers set
by the principle of separation of powers."21 The Court, therefore, is not precluded from resolving the
legal issues raised by the mere invocation by respondent of the doctrine of separation of powers. On
the contrary, the resolution of the legal issues falls within the exclusive jurisdiction of this Court.

Transfer of the Complaint from the Ethics Committee

to the Senate Committee on the Whole

Petitioners allege that the transfer of the complaint against Senator Villar to the Senate Committee of
the Whole violates his constitutional right to equal protection. Petitioners allege that the Senate
Committee of the Whole was constituted solely for the purpose of assuming jurisdiction over the
complaint against Senator Villar. Petitioners further allege that the act was discriminatory and
removed Senator Villar’s recourse against any adverse report of the Ethics Committee to the Senate
as a body.

We do not agree with petitioners.

Reviewing the events that led to the constitution of the Senate Committee of the Whole, the Court
notes that upon the election of Senator Enrile as Senate President on 17 November 2008, the Ethics
Committee was also reorganized. Senator Lacson, who first called the Senate’s attention to the
alleged irregularities committed by Senator Villar, was elected as Chairperson. On 16 December
2008, when Senator Lacson inquired whether the Minority was ready to name their representatives
to the Ethics Committee, Senator Pimentel informed the body that there would be no member from
the Minority in the Ethics Committee. On 26 January 2009, Senator Lacson reiterated his appeal to
the Minority to nominate their representatives to the Ethics Committee. Senator Pimentel informed
him that it is the stand of the Minority not to nominate any of their members to the Ethics Committee.
Senator Pimentel promised to convene a caucus to determine if the Minority’s decision on the matter
is final but the records did not show that a caucus was convened.

On 20 April 2009, Senator Villar delivered a privilege speech where he stated that he would answer
the accusations against him on the floor and not before the Ethics Committee. It was because of
the accusation that the Ethics Committee could not act with fairness on Senator Villar’s case that
Senator Lacson moved that the responsibility of the Ethics Committee be undertaken by the Senate
acting as a Committee of the Whole, which motion was approved with ten members voting in favor,
none against, and five abstentions.

The Rules of the Ethics Committee provide that "all matters relating to the conduct, rights, privileges,
safety, dignity, integrity and reputation of the Senate and its Members shall be under the exclusive
jurisdiction of the Senate Committee on Ethics and Privileges."22 However, in this case, the refusal of
the Minority to name its members to the Ethics Committee stalled the investigation. In short, while
ordinarily an investigation about one of its members’ alleged irregular or unethical conduct is within
the jurisdiction of the Ethics Committee, the Minority effectively prevented it from pursuing the
investigation when they refused to nominate their members to the Ethics Committee. Even Senator
Villar called the Ethics Committee a kangaroo court and declared that he would answer the
accusations against him on the floor and not before the Ethics Committee. Given the circumstances,
the referral of the investigation to the Committee of the Whole was an extraordinary remedy
undertaken by the Ethics Committee and approved by a majority of the members of the Senate.

Adoption of the Rules of the Ethics Committee

by the Senate Committee of the Whole

Petitioners allege that the adoption of the Rules of the Ethics Committee by the Senate Committee
of the Whole is violative of Senator Villar’s right to due process.

We do not agree.

Again, we reiterate that, considering the circumstances of this case, the referral of the investigation
by the Ethics Committee to the Senate Committee of the Whole is an extraordinary remedy that
does not violate Senator Villar’s right to due process. In the same manner, the adoption by the
Senate Committee of the Whole of the Rules of the Ethics Committee does not violate Senator
Villar’s right to due process.

The Constitutional right of the Senate to promulgate its own rules of proceedings has been
recognized and affirmed by this Court. Thus:

First. Section 16(3), Article VI of the Philippine Constitution states: "Each House shall determine the
rules of its proceedings."

This provision has been traditionally construed as a grant of full discretionary authority to the House
of Congress in the formulation, adoption and promulgation of its own rules. As such, the exercise of
this power is generally exempt from judicial supervision and interference, except on a clear showing
of such arbitrary and improvident use of the power as will constitute a denial of due process.

x x x. The issue partakes of the nature of a political question which, under the Constitution, is to be
decided by the people in their sovereign capacity, or in regard to which full discretionary authority
has been delegated to the legislative or executive branch of the government. Further, pursuant to his
constitutional grant of virtually unrestricted authority to determine its own rules, the Senate is at
liberty to alter or modify these rules at any time it may see fit, subject only to the imperatives of
quorum, voting and publication.23

The only limitation to the power of Congress to promulgate its own rules is the observance of
quorum, voting, and publication when required. As long as these requirements are complied with,
the Court will not interfere with the right of Congress to amend its own rules.

Prior Publication

Petitioners assail the non-publication of the Rules of the Senate Committee of the Whole.
Respondent counters that publication is not necessary because the Senate Committee of the Whole
merely adopted the Rules of the Ethics Committee which had been published in the Official Gazette
on 23 March 2009. Respondent alleges that there is only one set of Rules that governs both the
Ethics Committee and the Senate Committee of the Whole.

In Neri v. Senate Committee on Accountability of Public Officers and Investigations, 24 the Court
declared void unpublished rules of procedure in Senate inquiries insofar as such rules affect the
rights of witnesses. The Court cited Section 21, Article VI of the Constitution which mandates:

Sec. 21. The Senate or the House of Representatives or any of its respective Committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The
rights of persons appearing in or affected by such inquiries shall be respected. (Emphasis supplied)

The Court explained in the Resolution25 denying the motion for reconsideration:

The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in
accordance with the duly published rules of procedure is categorical. It is incumbent upon the
Senate to publish the rules of its legislative inquiries in each Congress or otherwise make the
published rules clearly state that the same shall be effective in the subsequent Congresses or until
they are amended or repealed to sufficiently put public on notice.

If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in
the next Congress, it could have easily adopted the same language it had used in its main rules
regarding effectivity.

Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or
proceedings conducted pursuant to the subject Rules are null and void. Only those that result in
violation of the rights of witnesses should be considered null and void, considering that the
rationale for the publication is to protect the rights of the witnesses as expressed in Section
21, Article VI of the Constitution. Sans such violation, orders and proceedings are considered
valid and effective.26 (Emphasis supplied)

In the recent case of Gutierrez v. The House of Representatives Committee on Justice, et al.,27 the
Court further clarified:

x x x inquiries in aid of legislation under Section 21, Article VI of the Constitution is the sole instance
in the Constitution where there is a categorical directive to duly publish a set of rules of procedure.
Significantly notable in Neri is that with respect to the issue of publication, the Court anchored its
ruling on the 1987 Constitution’s directive, without any reliance on or reference to the 1986 case
of Tañada v. Tuvera. Tañada naturally could neither have interpreted a forthcoming 1987
Constitution nor had kept a tight rein on the Constitution’s intentions as expressed through the
allowance of either a categorical term or a general sense of making known the issuances. 28

The Constitution does not require publication of the internal rules of the House or Senate. Since
rules of the House or the Senate that affect only their members are internal to the House or Senate,
such rules need not be published, unless such rules expressly provide for their publication
before the rules can take effect.

In this case, the proceedings before the Senate Committee of the Whole affect only members of the
Senate since the proceedings involve the Senate’s exercise of its disciplinary power over one of its
members. Clearly, the Rules of the Senate Committee of the Whole are internal to the Senate.
However, Section 81, Rule 15 of the Rules of the Senate Committee of the Whole provides:
Sec. 81. EFFECTIVITY. These Rules shall be effective after publication in the Official Gazette or in a
newspaper of general circulation.29

Hence, in this particular case, the Rules of the Senate Committee of the Whole itself provide that the
Rules must be published before the Rules can take effect. Thus, even if publication is not required
under the Constitution, publication of the Rules of the Senate Committee of the Whole is required
because the Rules expressly mandate their publication. The majority of the members of the Senate
approved the Rules of the Senate Committee of the Whole, and the publication requirement which
they adopted should be considered as the will of the majority. Respondent cannot dispense with the
publication requirement just because the Rules of the Ethics Committee had already been published
in the Official Gazette. To reiterate, the Rules of the Senate Committee of the Whole expressly
require publication before the Rules can take effect. To comply with due process requirements, the
Senate must follow its own internal rules if the rights of its own members are affected.

Incidentally, we note that Section 4, Rule 1 of the Rules of the Senate Committee of the Whole 30 is
an exact reproduction of Section 4, Rule 1 of the Rules of the Senate Committee on Ethics and
Privileges31 which states that the Ethics Committee shall be composed of seven members, contrary
to the fact that the Senate Committee of the Whole consists of all members of the Senate. In
addition, Section 5(B), Rule 1 of the Rules of the Senate Committee of the Whole 32 is an exact
reproduction of Section 5(B), Rule 1 of the Rules of the Senate Committee on Ethics and
Privileges33 which states that only two members of the Ethics Committee shall constitute a quorum,
contrary to respondent’s allegation in its Comment that eight members of the Senate Committee of
the Whole shall constitute a quorum.34

However, if the Senate is constituted as a Committee of the Whole, a majority of the Senate is
required to constitute a quorum to do business pursuant to Section 16(2), Article VI of the
Constitution.35 Otherwise, there will be a circumvention of this express provision of the Constitution
on quorum requirement. Obviously, the Rules of the Senate Committee of the Whole require
modification to comply with requirements of quorum and voting which the Senate must have
overlooked in this case. In any event, in case of conflict between the Rules of the Senate Committee
of the Whole and the Constitution, the latter will of course prevail.

WHEREFORE, we GRANT the petition in part. The referral of the complaint by the Committee on
Ethics and Privileges to the Senate Committee of the Whole shall take effect only upon publication of
the Rules of the Senate Committee of the Whole.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

 Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE C. MENDOZA

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

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.

RENATO C. CORONA
Chief Justice

Footnotes

1
Under Rule 65 of the 1997 Rules of Civil Procedure.

2
Rollo, pp. 117-123.

Id. at 53-54. RESOLUTION DIRECTING THE COMMITTEE ON ETHICS AND PRIVILEGES

3

TO INVESTIGATE THE CONDUCT OF SENATE PRESIDENT MANUEL B. VILLAR, JR.

FOR USING HIS POSITION OF POWER TO INFLUENCE PUBLIC OFFICIALS IN
RELOCATING THE C-5 ROAD EXTENSION PROJECT TO DELIBERATELY PASS THRU
HIS PROPERTIES, AND TO NEGOTIATE THE OVERPRICED PURCHASE OF ROAD
RIGHTS OF WAY THRU SEVERAL PROPERTIES ALSO OWNED BY HIS
CORPORATIONS REDOUNDING IN HUGE PERSONAL PERSONAL FINANCIAL
BENEFITS FOR HIM TO THE DETRIMENT OF THE FILIPINO PEOPLE, THEREBY
RESULTING IN A BLATANT CONFLICT OF INTEREST.

4
Id.

5
Id. at 131. Journal of the Senate.
6
Id.

7
Id. at 132. Journal of the Senate.

8
Id.

9
Id. at 141-154.

10
Id. at 155-159. Journal of the Senate.

11
Id. at 162-164. Journal of the Senate.

12
Id. at 165.

13
Id. at 19-20.

14
Id. at 86-87.

15
Lagunilla v. Velasco, G.R. No. 169276, 16 June 2009, 589 SCRA 224, 232-233
citing Regner v. Logarta, G.R. No. 168747, 19 October 2007, 537 SCRA 277 and Arcelona
v. Court of Appeals, 345 Phil. 250 (1997).

16
Rollo, p. 108, Comment.

17
441 Phil. 492 (2002).

Industrial Enterprises, Inc. v. Court of Appeals, G.R. No. 88550, 18 April 1990, 184 SCRA
18

426, 431-432.

19
Arimao v. Taher, G.R. No. 152651, 7 August 2006, 498 SCRA 74.

20
Francisco, Jr. v. House of Representatives, 460 Phil. 830 (2003).

21
Tolentino v. Secretary of Finance, G.R. No. 115455, 25 August 1994, 235 SCRA 630.

22
Section 2.

Dela Paz v. Senate Committee on Foreign Relations, G.R. No. 184849, 13 February 2009,
23

579 SCRA 521, 525.

24
G.R. No. 180643, 25 March 2008, 549 SCRA 77.

25
G.R. No. 180643, 4 September 2008, 564 SCRA 152.

26
Id. at 230-231.

27
G.R. No. 193459, 15 February 2011.

28
Emphasis in the original.
 29
Rollo, p. 52.

30
Id. at 31.

31
Id. at 141. It states:

Sec. 4. Composition. - It shall have seven (7) members who, including the
Chairperson, shall be chosen by the Senate. The President Pro Tempore and both
the Majority and Minority Leaders of the Senate are Ex-Officio Members of the
Committee.

32
Id. at 32.

33
Id. at 141. It states:

Sec. 5. Meetings. x x x.

B. QUORUM: The presence of at least two (2) Members of the Committee shall
constitute a quorum.

34
Id. at 96. The Comment states:

x x x For instance, with respect to the quorum, the records of the deliberations of the
Respondent Committee of the Whole will show that Senate President Enrile, after
tracing the long history of instances when the Senate was constituted as a Senate
Committee of the Whole, pointed out that for purposes of its proceedings and
consistent with tradition and practice, eight (8) of its members – not two (2) as
Petitioners claimed – will constitute the quorum.

35
Section 16. x x x

(2) A majority of each House shall constitute a quorum to do business, but a smaller
number may adjourn from day to day and may compel the attendance of absent
Members in such manner, and under such penalties, as such House may provide.

G.R. No. 164815 February 22, 2008

SR. INSP. JERRY C. VALEROSO, petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES, respondent.

DECISION
REYES, R.T., J.:

THE law looks forward, never backward. Lex prospicit, non respicit. A new law has a prospective,
not retroactive, effect.1 However, penal laws that favor a guilty person, who is not a habitual criminal,
shall be given retroactive effect.1-a These are the rule, the exception and exception to the exception
on effectivity of laws.

Ang batas ay tumitingin sa hinaharap, hindi sa nakaraan. Gayunpaman, ang parusa

ng bagong batas ay iiral kung ito ay pabor sa taong nagkasala na hindi pusakal na
kriminal.

We apply the exception rather than the rule in this petition for review on certiorari of the decision of
the Court of Appeals (CA), affirming with modification that of the Regional Trial Court (RTC) in
Quezon City, finding petitioner liable for illegal possession of a firearm.

The Facts

On July 10, 1996, at around 9:30 a.m., SPO2 Antonio M. Disuanco of the Criminal Investigation
Division, Central Police District Command, received a dispatch order2 from the desk officer.3 The
order directed him and three (3) other policemen to serve a warrant of arrest 4 issued by Judge
Ignacio Salvador against petitioner Sr. Insp. Jerry C. Valeroso in a case for kidnapping with ransom. 5

After a briefing, the team conducted the necessary surveillance on petitioner, checking his hideouts
in Cavite, Caloocan, and Bulacan.6 Eventually, the team proceeded to the Integrated National Police
(INP) Central Station at Culiat, Quezon City, where they saw petitioner as he was about to board a
tricycle.7 SPO2 Disuanco and his team approached petitioner.8 They put him under arrest, informed
him of his constitutional rights, and bodily searched him.9 Found tucked in his waist10 was a Charter
Arms, bearing Serial Number 5231511 with five (5) live ammunition.12

Petitioner was then brought to the police station for questioning.13

A verification of the subject firearm at the Firearms and Explosives Division at Camp Crame
revealed that it was not issued to petitioner but to a certain Raul Palencia Salvatierra of Sampaloc,
Manila.14 Epifanio Deriquito, the records verifier, presented a certification15 to that effect signed by
Edwin C. Roque, chief records officer of the Firearms and Explosive Division. 16

Petitioner was then charged with illegal possession of firearm and ammunition under Presidential
Decree (P.D.) No. 1866,17 as amended. The Information read:

That on or about the 10th day of July, 1996, in Quezon City, Philippines, the said accused
without any authority of law, did then and there willfully, unlawfully and knowingly have in
his/her possession and under his/her custody and control

One (1) cal. 38 "Charter Arms" revolver bearing Serial No. 52315 with five (5) live ammo.
without first having secured the necessary license/permit issued by the proper authorities.

CONTRARY TO LAW.

Quezon City, Philippines, July 15, 1996.

(Sgd.)
 GLORIA VICTORIA C. YAP
Assistant City Prosecutor18

With the assistance of his counsel de parte, Atty. Oscar Pagulayan, petitioner pleaded not guilty
when arraigned on October 9, 1996.19 Trial on the merits ensued.

SPO2 Disuanco and Deriquito testified for the prosecution in the manner stated above.

Upon the other hand, the defense version was supplied by the combined testimonies of petitioner Sr.
Insp. Jerry C. Valeroso, SPO3 Agustin R. Timbol, Jr. and Adrian Yuson.

Petitioner recounted that on July 10, 1996, he was fast asleep in the boarding house of his children
located at Sagana Homes, Barangay New Era, Quezon City.20 He was roused from his slumber
when four (4) heavily armed men in civilian clothes bolted the room.21 They trained their guns at
him22 and pulled him out of the room. They then tied his hands and placed him near the faucet. 23 The
raiding team went back inside and searched and ransacked the room.24 SPO2 Disuanco stood guard
outside with him.25 Moments later, an operative came out of the room and exclaimed, "Hoy, may
nakuha akong baril sa loob!"26

Petitioner was told by SPO2 Disuanco that "we are authorized to shoot you because there’s a shoot
to kill order against you, so if you are planning do so something, do it right now." 27 He was also told
that there was a standing warrant for his arrest.28 However, he was not shown any proof when he
asked for it.29 Neither was the raiding group armed with a valid search warrant.30

According to petitioner, the search done in the boarding house was illegal. The gun seized from him
was duly licensed and covered by necessary permits. He was, however, unable to present the
documentation relative to the firearm because it was confiscated by the police. Petitioner further
lamented that when he was incarcerated, he was not allowed to engage the services of a counsel.
Neither was he allowed to see or talk to his family.31

Petitioner contended that the police had an axe to grind against him. While still with the Narcotics
Command, he turned down a request of Col. Romulo Sales to white-wash a drug-related
investigation involving friends of the said police officer. Col. Sales was likewise subject of a
complaint filed with the Ombudsman by his wife. Col. Sales was later on appointed as the head of
the unit that conducted the search in his boarding house.32

SPO3 Timbol, Jr. of the Narcotics Command testified that he issued to petitioner a Memorandum
Receipt dated July 1, 199333 covering the subject firearm and its ammunition. This was upon the
verbal instruction of Col. Angelito Moreno. SPO3 Timbol identified his signature 34 on the said
receipt.35

Adrian Yuson, an occupant of the room adjacent to where petitioner was arrested, testified that on
July 10, 1996, two (2) policemen suddenly entered his room as he was preparing for school. 36 They
grabbed his shoulder and led him out.37 During all those times, a gun was poked at him.38 He was
asked where petitioner was staying. Fearing for his life, he pointed to petitioner’s room. 39

Four (4) policemen then entered the room.40 He witnessed how they pointed a gun at petitioner, who
was clad only in his underwear.41 He also witnessed how they forcibly brought petitioner out of his
room.42 While a policeman remained near the faucet to guard petitioner, three (3) others went back
inside the room.43 They began searching the whole place. They forcibly opened his locker,44 which
yielded the subject firearm.45
 RTC and CA Dispositions

On May 6, 1998, the trial court found petitioner guilty as charged, disposing as follows:

WHEREFORE, the Court hereby finds the accused guilty beyond reasonable doubt of
Violation of Section 1 of Presidential Decree No. 1866 as amended by Republic Act No.
8294 and hereby sentences him to suffer the penalty of prision correccional in its maximum
period or from 4 years, 2 months and 1 day as minimum to 6 years as maximum and to pay
the fine in the amount of Fifteen Thousand Pesos (P15,000.00).

The gun subject of this case is hereby ordered confiscated in favor of the government. Let
the same be put in trust in the hands of the Chief of the PNP.

SO ORDERED.46

Petitioner moved to reconsider47 but his motion was denied on August 27, 1998.48 He appealed to the
CA.

On May 4, 2004, the appellate court affirmed with modification the RTC disposition. The fallo of the
CA decision reads:

Verily, the penalty imposed by the trial court upon the accused-appellant is modified to 4
years and 2 months as minimum up to 6 years as maximum.

WHEREFORE, with the foregoing MODIFICATION as to the penalty, the decision appealed
from is hereby AFFIRMED in all other respects.

SO ORDERED.49

His motion for reconsideration50 having been denied through a Resolution dated August 3,
2004,51 petitioner resorted to the present petition under Rule 45.

Issues

Petitioner raises the following issues for Our consideration:

I. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN

AFFIRMING THE CONVICTION OF PETITIONER DESPITE THE ABSENCE OF PROOF
BEYOND REASONABLE DOUBT.

II. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF FACT

AND LAW IN SUSTAINING THE LEGALITY OF THE SEARCH AND THE VALIDITY AND
ADMISSIBILITY OF THE EVIDENCE OBTAINED THEREFROM DESPITE THE
OVERWHELMING PROOF THAT THE SAME IS THE FRUIT OF THE POISONOUS TREE.

III. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF

LAW IN NOT UPHOLDING THE REGULARITY AND VALIDITY SURROUNDING THE
ISSUANCE OF THE MEMORANDUM RECEIPTS (SIC) IN FAVOR OF PETITIONER
WHICH PROVES HIS INNOCENCE OF THE CRIME CHARGE (SIC).52 (Underscoring
supplied)
 Our Ruling

In illegal possession of firearm and ammunition, the prosecution has the burden of proving the twin
elements of (1) the existence of the subject firearm and ammunition, and (2) the fact that the
accused who possessed or owned the same does not have the corresponding license for it. 53

The prosecution was able to discharge its burden.

The existence of the subject firearm and its ammunition was established through the testimony of
SPO2 Disuanco.54 Defense witness Yuson also identified the firearm.55 Its existence was likewise
admitted by no less than petitioner himself.56

As for petitioner’s lack of authority to possess the firearm, Deriquito testified that a verification of the
Charter Arms Caliber .38 bearing Serial No. 52315 with the Firearms and Explosives Division at
Camp Crame revealed that the seized pistol was not issued to petitioner. It was registered in the
name of a certain Raul Palencia Salvatierra of Sampaloc, Manila.57 As proof, Deriquito presented a
certification signed by Roque, the chief records officer of the same office. 58

The Court on several occasions ruled that either the testimony of a representative of, or a
certification from, the Philippine National Police (PNP) Firearms and Explosive Office attesting that a
person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second
element of possession of illegal firearms.59 The prosecution more than complied when it presented
both.

The certification is outside the scope of the hearsay rule.

The general rule is that a witness can testify only to those facts which he knows of his personal
knowledge; that is, which are derived from his own perception.60 Otherwise, the testimony is
objectionable for being hearsay.61

On this score, the certification from the Firearms and Explosives Division is an exception to the
hearsay rule by virtue of Rule 130, Section 44 of the Rules of Court which provides:

Sec. 44. Entries in official records. – Entries in official records made in the performance of
his official duty by a public officer of the Philippines, or by a person in the performance of a
duty specifically enjoined by law, are prima facie evidence of the facts therein stated.

It may be true that the contents of said certification are only prima facie evidence of the facts stated
there. However, the failure of petitioner to present controverting evidence makes the presumption
unrebutted. Thus, the presumption stands.

Petitioner, however, raises several points which he says entitles him to no less than an acquittal.

The assessment of credibility of witnesses lies with the trial court.

First, petitioner says that the seizure of the subject firearm was invalid. The search was conducted
after his arrest and after he was taken out of the room he was occupying. 62

This contention deserves scant consideration.

Petitioner’s version of the manner and place of his arrest goes into the factual findings made by the
trial court and its calibration of the credibility of witnesses. However, as aptly put by Justice Ynares-
Santiago in People v. Rivera:63

x x x the manner of assigning values to declarations of witnesses on the witness stand is

best and most competently performed by the trial judge who had the unmatched opportunity
to observe the witnesses and assess their credibility by the various indicia available but not
reflected on record. The demeanor of the person on the stand can draw the line between fact
and fancy or evince if the witness is telling the truth or lying through his teeth. We have
consistently ruled that when the question arises as to which of the conflicting versions of the
prosecution and the defense is worthy of belief, the assessment of the trial courts are
generally viewed as correct and entitled to great weight. Furthermore, in an appeal, where
the culpability or innocence of the accused depends on the issue of credibility of witnesses
and the veracity of their testimonies, findings of the trial court are given the highest degree of
respect if not finality.64 (Underscoring supplied)

The trial court found the prosecution version worthy of credence and belief. We find no compelling
reason not to accept its observation on this score.

Worth noting is the fact that petitioner is a ranking police officer who not only claims to be highly
decorated,65 but have effected a number of successful arrests66 as well. Common sense would
dictate that he must necessarily be authorized to carry a gun. We thus agree with the Office of the
Solicitor General that framing up petitioner would have been a very risky proposition. Had the
arresting officers really intended to cause the damnation of petitioner by framing him up, they could
have easily "planted" a more incriminating evidence rather than a gun. That would have made their
nefarious scheme easier, assuming that there indeed was one.

The pieces of evidence show that petitioner is not legally authorized to possess the subject
firearm and its five (5) ammunition.

Second, petitioner insists that he is legally authorized to possess the subject firearm and its
ammunition on the basis of the Memorandum Receipt issued to him by the PNP Narcotics
Command.67

Although petitioner is correct in his submission that public officers like policemen are accorded
presumption of regularity in the performance of their official duties,68 it is only a presumption; it may
be overthrown by evidence to the contrary. The prosecution was able to rebut the presumption when
it proved that the issuance to petitioner of the Memorandum Receipt was anything but regular.

SPO3 Timbol, Jr. testified that he issued the Memorandum Receipt to petitioner based on the verbal
instruction of his immediate superior, Col. Moreno.69 However, a reading of Timbol’s testimony on
cross-examination70 would reveal that there was an unusual facility by which said receipt was issued
to petitioner. Its issuance utterly lacked the usual necessary bureaucratic constraints. Clearly, it was
issued to petitioner under questionable circumstances.

Failure to offer an unlicensed firearm as evidence is not fatal provided there is competent
testimony as to its existence.

Third, petitioner claims that the subject firearm and ammunition should have been excluded as
evidence because they were not formally offered by the prosecution71 in violation of Section 34, Rule
132 of the Rules of Court.72
We note that petitioner contradicted himself when he argued for the validity of the Memorandum
Receipt and, at the same time, for the exclusion in evidence of the subject firearm and its
ammunition. Petitioner’s act may result to an absurd situation where the Memorandum Receipt is
declared valid, while the subject firearm and its ammunition which are supposedly covered by the
Memorandum Receipt are excluded as evidence. That would have made the Memorandum Receipt
useless.

In any case, petitioner’s contention has no leg to stand on.

Contrary to petitioner’s claim, the subject firearm73 and its five (5) live ammunition74 were offered in
evidence by the prosecution.75 Even assuming arguendo that they were not offered, petitioner’s
stance must still fail. The existence of an unlicensed firearm may be established by testimony, even
without its presentation at trial. In People v. Orehuela,76 the non-presentation of the pistol did not
prevent the conviction of the accused.

The doctrine was affirmed in the recent case of People v. Malinao.77

As previously stated, the existence of the subject firearm and its five (5) live ammunition were
established through the testimony of SPO2 Disuanco.78 Yuson also identified said
firearm.79 Petitioner even admitted its existence.80

We hasten to add that there may also be conviction where an unlicensed firearm is presented during
trial but through inadvertence, negligence, or fortuitous event (for example, if it is lost), it is not
offered in evidence, as long as there is competent testimony as to its existence.

Penal and civil liabilities

Petitioner was charged with the crime of illegal possession of firearms and ammunition under the
first paragraph of Section 1 of P.D. No. 1866, as amended. It provides that "[t]he penalty of reclusion
temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm,
ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any
firearm or ammunition."

P.D. No. 1866, as amended, was the governing law at the time petitioner committed the offense on
July 10, 1996. However, R.A. No. 8294 amended P.D. No. 1866 on July 6, 1997, 81 during the
pendency of the case with the trial court. The present law now states:

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms

or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms
or Ammunition. – The penalty of prision correccional in its maximum period and a fine of not
less than Fifteen Thousand Pesos (P15,000) shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any low-powered firearm,
such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm,
ammunition, or machinery, tool or instrument used or intended to be used in the manufacture
of any firearm or ammunition: Provided, That no other crime was committed. (Underscoring
supplied)

As a general rule, penal laws should not have retroactive application, lest they acquire the character
of an ex post facto law.82 An exception to this rule, however, is when the law is advantageous to the
accused. According to Mr. Chief Justice Araullo, this is "not as a right" of the offender, "but founded
on the very principles on which the right of the State to punish and the commination of the penalty
are based, and regards it not as an exception based on political considerations, but as a rule
founded on principles of strict justice."83

Although an additional fine of P15,000.00 is imposed by R.A. No. 8294, the same is still
advantageous to the accused, considering that the imprisonment is lowered to prision correccional in
its maximum period84 from reclusion temporal in its maximum period to reclusion perpetua85 under
P.D. No. 1866.

Applying the Indeterminate Sentence Law, prision correccional maximum which ranges from four (4)
years, two (2) months and one (1) day to six (6) years, is the prescribed penalty and will form the
maximum term of the indeterminate sentence. The minimum term shall be one degree lower, which
is prision correccional in its medium period (two [2] years, four [4] months and one [1] day to four [4]
years and two [2] months).86 Hence, the penalty imposed by the CA is correct. The penalty of four (4)
years and two (2) months of prision correccional medium, as minimum term, to six (6) years of
prision correccional maximum, as maximum term, is in consonance with the Court’s ruling
in Gonzales v. Court of Appeals87 and Barredo v. Vinarao.88

As to the subject firearm and its five (5) live ammunition, their proper disposition should be made
under Article 45 of the Revised Penal Code89 which provides, among others, that the proceeds and
instruments or tools of the crime shall be confiscated and forfeited in favor of the government.

WHEREFORE, the Decision of the Court of Appeals dated May 4, 2004 is AFFIRMED in full.

SO ORDERED.

RUBEN T. REYES
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA

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

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

Footnotes

1
New Civil Code, Art. 4.

1-a
Revised Penal Code, Art. 22 provides: Retroactive effect of penal laws. – Penal laws shall
have a retroactive effect in so far as they favor the person guilty of a felony, who is not a
habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the
time of the publication of such laws a final sentence has been pronounced and the convict is
serving the same.

2
Exhibit "D."

3
TSN, November 6, 1996, pp. 4-5, 9.

4
Exhibit "B."

5
TSN, November 6, 1996, pp. 4, 7, 9.

6
Id. at 11.

7
Id. at 3. INP is now Philippine National Police (PNP).

8
Id. at 4.

9
Id. at 5-6.

10
TSN, November 6, 1996, pp. 14-15; TSN, December 11, 1996, p. 10.

11
Exhibit "E."

12
Exhibits "E-1" to "E-5."
13
TSN, November 6, 1996, p. 6.

14
TSN, December 11, 1996, p. 21.

15
Exhibit "C."

PNPFED 12 Jul[y] 1996

CERTIFICATION

TO WHOM IT MAY CONCERN:

This is to certify that [the] Revolver, Charter Arms, Cal. 38 with serial number 52315
is registered to RAUL PALENCIA SALVATIERA of Sampaloc, Manila, acquired thru
transfer f[ro]m Wilburn Irwin Lucasan per index card d[a]t[e]d 10 December 1990.

This certification is issued for whatever legal purpose it may serve.

FOR THE CHIEF, FED:

EDWIN C[.] ROQUE (Sgd.)

P/Sr. Inspector
Chief, Records Br[.]

16
TSN, December 11, 1996, pp. 19-20.

17
Entitled "An Act Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing
in, Acquisition or Disposition of Firearms, Ammunition or Explosives or Instruments Used in
the Manufacture of Firearms, Ammunition or Explosives, and Imposing Stiffer Penalties for
Certain Violations Thereof, and for Relevant Purposes." This law was issued by President
Ferdinand E. Marcos on June 29, 1983. See Zuño, Sr. v. Dizon, A.M. No. RTJ-91-752, June
23, 1993, 223 SCRA 584, 598.

18
Rollo, p. 35.

19
Id. at 38.

20
TSN, February 19, 1997, pp. 19-21.

21
Id. at 21.

22
Id.

23
Id. at 22.

24
Id. at 3, 6.

25
TSN, March 17, 1997, p. 5.

26
Id. at 4.
27
Id. at 10.

28
Id. at 11.

29
Id. at 12.

30
Id. at 14.

31
Id. at 21-22.

32
TSN, March 17, 1997, pp. 22-26.

33
Exhibit "1."

34
Exhibit "1-A."

35
TSN, June 4, 1996, pp. 2-6.

36
TSN, August 4, 1997, p. 7.

37
Id. at 8.

38
Id.

39
Id. at 8-9.

40
Id. at 9.

41
Id. at 10.

42
Id.

43
Id. at 11.

44
Id. at 12.

45
Id.

46
Rollo, p. 44.

47
Exhibit "E."

48
Exhibit "F."

49
Rollo, p. 31.

50
Exhibit "I."

51
Exhibit "B."
52
Rollo, p. 125.

Padilla v. Court of Appeals, G.R. No. 121917, March 12, 1997, 269 SCRA 402; Mallari v.
53

Court of Appeals, G.R. No. 110569, December 19, 1996, 265 SCRA 456; People v.
Damaso, G.R. No. 93516, August 12, 1992, 212 SCRA 547.

54
TSN, November 6, 1996, pp. 4, 7, 9.

55
TSN, August 4, 1997, p. 12.

56
TSN, March 17, 1997, pp. 14-15, 19.

57
TSN, December 11, 1996, p. 21.

58
Id. at 19-20.

People v. Taan, G.R. No. 169432, October 30, 2006, 506 SCRA 219; Ungsod v. People,
59

G.R. No. 158904, December 16, 2005, 478 SCRA 282; People v. Lazaro, G.R. No. 112090,
October 26, 1999, 317 SCRA 435, citing Padilla v. Court of Appeals, G.R. No. 121917,
March 12, 1997, 269 SCRA 402; Rosales v. Court of Appeals, G.R. Nos. 106229-30, March
15, 1996, 255 SCRA 123; People v. Orehuela, G.R. Nos. 108780-81, April 29, 1994, 232
SCRA 82. See also Mallari v. Court of Appeals, supra note 53; People v. Solayao, G.R. No.
119220, September 20, 1996, 262 SCRA 255.

60
Rules of Court, Rule 130, Sec. 36.

61
The United States Federal Rule of Evidence defines hearsay as "a statement, other than
one made by the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted." Cleary, E.W., McCormick on Evidence (1984), 3rd ed., p.
729, citing Federal Rule of Evidence 801(c). Accordingly, hearsay evidence is objected to
due to the following reasons:

Oath. Among the earliest of the criticisms of hearsay, and one often repeated in
judicial opinions down to the present, is the objection that the out-of-court declarant
who made the hearsay statement commonly speaks or writes without the solemnity
of the oath administered to witnesses in a court of law. The oath may be important in
two aspects. As a ceremonial and religious symbol it may induce in the witness a
feeling of special obligation to speak the truth, and also it may impress upon the
witness the danger of criminal punishment for perjury, to which the judicial oath or an
equivalent solemn affirmation would be a prerequisite condition. x x x

Personal presence at trial. Another objection early asserted and repeated of late is
the want of opportunity, in respect to the out-of-court declarant, for observation of his
demeanor, with the light that this may shed on his credibility, that would be afforded if
he were a witness on the stand.

The solemnity of the occasion and possibility of public disgrace can scarcely fail to
impress the witness, and falsehood no doubt becomes more difficult if the person
against whom directed is present.
 Moreover, personal presence eliminates the danger that in the oral reporting of an
out-of-court statement that the witness reporting the statement may do so
inaccurately. It seems probable that the reporting of words spoken is subject to
special dangers of inaccuracy beyond the fallibility common to all reproduction from
memory of matters of observation, and this seems a substantial danger in the
admission of hearsay. x x x

Cross-examination. It would be generally agreed today that noncompliance with the

third condition is the main justification for the exclusion of hearsay. This is the lack of
any opportunity for the adversary to cross examine the absent declarant whose out-
of-court statement is reported by the witness. x x x In perhaps his most famous
remark, Wigmore described cross-examination as "beyond any doubt the greatest
legal engine ever invented for the discovery of truth." (Underscoring supplied) (Id. at
727-728.)

62
Rollo, pp. 8, 136.

433 Phil. 343 (2002), citing People v. Sanchez, G.R. Nos. 121039-45, January 25, 1999,
63

302 SCRA 21; People v. Librando, 390 Phil. 543 (2000); People v. Deleverio, G.R. Nos.
118937-38, April 24, 1998, 289 SCRA 547; People v. Zaballero, G.R. No. 100935, June 30,
1997, 274 SCRA 627.

64
People v. Rivera, id. at 352.

65
Rollo, p. 61.

66
TSN, March 17, 1997, p. 25.

67
Rollo, pp. 11-12, 138.

68
Gutang v. People, 390 Phil. 805, 817-818 (2000), citing People v. William, G.R. No. 93712,
June 15, 1992, 209 SCRA 808; People v. Rumeral, G.R. No. 86320, August 5, 1991, 200
SCRA 194. See also Rules of Court, Rule 131, Sec. 3(m).

69
TSN, June 4, 1997, pp. 3-6.

70
Id. at 7-11.

FISCAL: I am asking you why your office likewise issued [a] Memo Receipt if he [i.e.,
Colonel Angelito Moreno] normally issue (sic) a firearm for [an] officer of the PNP?

A. Because our office has also authorized us to issue.

Q: And who authorized your office?

A: It is our Commanding Officer, Sir.

Q: And who authorized the Commanding Officer?

INTERPRETER:
 Witness cannot answer.

Q: Where does the Commanding Officer derive his authority?

A: What I know is that the Commanding Officer is authorized to [issue] firearm that
will be issued to a PNP Officer but I do not know who gave the authority to our
officer.

xxxx

Q: As such, do you keep inventory of such supplies?

A: Yes, Sir.

Q: Do you have the inventory of this particular gun, the original?

A: Yes, Sir.

Q: Do you have that inventory with you, that inventory of such gun, the Memo
Receipt?

A: That firearm was not in my custody.

Q: But you said a while ago it is with you, which is which, do you have or do you
not have the listing of such inventory?

A: None, Sir.

xxxx

FISCAL: Mr. Witness, other than this case, were there any instances where you
issued Memo Receipt as verbally directed by your alleged Commanding Officer
Moreno?

A: Yes, Sir, I’m only a RSO since November 1993.

Q: Precisely, 1991 to 1993, for a period wherein you claimed you hold an office of
RSO, has (sic) this the only time you issued?

A: Many time[s], Sir.

COURT: Let’s clarify this. The Court understands to (sic) your previous answer that
this is the first time that you have done this procedure of issuing guns to an officer.
Are you changing that this is the first time and not many times?

A: That is the only first (sic) time, as instructed by the Commanding Officer, Your
Honor. (Underscoring supplied)

71
Rollo, pp. 11, 137-138.
72
Sec. 34. Offer of evidence. – The court shall consider no evidence which has not been
formally offered. The purpose for which the evidence is offered must be specified.

73
Exhibit "E."

74
Exhibits "E-1" to "E-5."

75
TSN, February 19, 1997, p. 14.

76
G.R. Nos. 108780-81, April 29, 1994, 232 SCRA 82, 95-96.

As Mr. Justice Feliciano held for the Court:

x x x Upon the other hand, we note also that the allegedly unlicensed murder
weapon was not presented in evidence by the prosecution. What the prosecution did
present to show absence of a license or permit to possess the firearm used to kill
Teoberto, was a certification issued by the Bohol Regional Headquarters of the
Integrated National Police, dated 20 December 1989, x x x:

xxxx

We consider that the certification was adequate to show that the firearm used by
Modesta Orehuela in killing Teoberto Cañizares was a firearm which Orehuela was
not licensed to possess and to carry outside his residence on the night that Teoberto
Cañizares was shot to death. That that firearm was a .38 caliber pistol was shown by
the testimony and report of NBI Ballistician Bonifacio Ayag. When the above
circumstances are taken together with the testimony of the eye-witness that Modesto
Orehuela was in fact in possession of a firearm and used the same to kill Teoberto
Cañizares, we believe that accused Orehuela was properly found guilty of
aggravated or qualified illegal possession of firearm and ammunition. (Underscoring
supplied)

G.R. No. 128148, February 16, 2004, 423 SCRA 34. See also People v. Taan, supra note
77

59; People v. Taguba, 396 Phil. 366 (2000).

78
TSN, November 6, 1996, pp. 4, 7, 9.

79
TSN, August 4, 1997, p. 12.

80
TSN, March 17, 1997, pp. 14-15, 19.

81
People v. Lazaro, supra note 59.

82
Mejia v. Pamaran, G.R. Nos. L-56741-42, April 15, 1988, 160 SCRA 457, 472. An ex post
facto law is one which:

1. Makes criminal an act done before the passage of the law and which was innocent
when done, and punishes such an act;

2. Aggravates a crime, or makes it greater than it was, when committed;

 3. Changes the punishment and inflicts a greater punishment than the law annexed
to the crime when committed;

4. Alters the legal rules of evidence, and authorizes conviction upon less or different
testimony than the law required at the time of the commission of the offense;

5. Assuming to regulate civil rights and remedies only, in effect imposes penalty or
deprivation of a right for something which when done was lawful; and

6. Deprives a person accused of a crime of some lawful protection to which he has

become entitled, such as the protection of a former conviction or acquittal, or a
proclamation of amnesty.

83
People v. Moran, 44 Phil. 387, 408 (1923), citing Fiore, Irretroactividad e Interpretacion de
las Leyes.

Reyes, L.B., The Revised Penal Code, Book II, 2001 ed., p. 1021. PRISION
84

CORRECCIONAL IN ITS MAXIMUM PERIOD. – 4 years, 2 months and 1 day to 6 years

Minimum : 4 years, 2 months and 1 day to 4 years, 9 months and 10 days

Medium : 4 years, 9 months and 11 days to 5 years, 4 months and 20 days

Maximum : 5 years, 4 months and 21 days to 6 years

Id. at 1026. RECLUSION TEMPORAL IN ITS MAXIMUM PERIOD TO RECLUSION

85

PERPETUA. – 17 years, 4 months and 1 day to reclusion perpetua

Minimum : 17 years, 4 months and 1 day to 18 years and 8 months

Medium : 18 years, 8 months and 1 day to 20 years

Maximum : Reclusion perpetua

Id. at 1021. PRISION CORRECCIONAL IN ITS MEDIUM PERIOD. – 2 years, 4 months

86

and 1 day to 4 years and 2 months

Minimum : 2 years, 4 months and 1 day to 2 years, 11 months and 10 days

Medium : 2 years, 11 months and 11 days to 3 years, 6 months and 20 days

Maximum : 3 years, 6 months 21 days to 4 years and 2 months.

87
343 Phil. 297 (1997).

88
G.R. No. 168728, August 2, 2007.

89
Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. – Every
penalty imposed for the commission of a felony shall carry with it the forfeiture of the
proceeds of the crime and the instruments or tools with which it was committed.
 Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the
Government, unless they be the property of a third person not liable for the offense, but
those articles which are not subject of lawful commerce shall be destroyed. (Underscoring
supplied)

G.R. No. 104528 January 18, 1996

PHILIPPINE NATIONAL BANK, petitioner,

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

RESOLUTION
PANGANIBAN, J.:

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

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

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

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

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

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

Petitioner bank raised the following issues:

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

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

Normally, pursuant to Article 4 of the Civil Code, "(l)aws shall have no retroactive effect, unless
the contrary is provided." However, it is obvious and indubitable that P.D. 957 was intended to cover
even those real estate mortgages, like the one at issue here, executed prior to its enactment, and
such intent (as succinctly captured in the preamble quoted below) must be given effect if the
laudable purpose of protecting innocent purchasers is to be achieve:
 WHEREAS, it is the policy of the State to afford its inhabitants the requirements of
decent human settlement and to provide them with ample opportunities for improving their
quality of life;

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

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

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

The intent of the law, as culled from its preamble and from the situation, circumstances and
condition it sought to remedy, must be enforced. Sutherland, in his well-known treatise on Statutory
Construction (quoted with approval by this Court in an old case of consequence, Ongsiako vs.
Gamboa ), says:
2

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

Truly, this Court cannot allow the injustice that will be wrought by a strictly prospective
application of the law. Little people who have toiled for years through blood and tears would be
deprived of their homes through no fault of their own. As the Solicitor General, in his comment,
argues:
 Verily, if P.D. 957 were to exclude from its coverage the aforecited mortgage contract,
the vigorous regulation which P.D. 957 seeks to impose on unconscientious subdivision
sellers will be translated into a feeble exercise of police power just because the iron hand of
the State cannot particularly touch mortgage contracts badged with the fortunate accident of
having been constituted prior to the enactment of P.D. 957. Indeed, it would be illogical in the
extreme if P.D. 957 is to be given full force and effect and yet, the fraudulent practices and
manipulations it seeks to curb in the first instance can nevertheless be liberally perpetrated
precisely because P.D. 957 cannot be applied to existing antecedent mortgage contracts.
The legislative intent could not have conceivably permitted a loophole which all along works
to the prejudice of subdivision lot buyers (private respondents).
4

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

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

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

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

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

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

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

Despite the impairment clause, a contract valid at the time of its execution may be legally
modified or even completely invalidated by a subsequent law. If the law is a proper exercise
of the police power, it will prevail over the contract.
 Into each contract are read the provisions of existing law and, always, a reservation of
the police power as long as the agreement deals with a matter, affecting the public welfare.
Such a contract, it has been held, suffers a congenital infirmity, and this is its susceptibility to
change by the legislature as a postulate of the legal order. 5

This Court ruled along similar lines in Juarez vs. Court of Appeals : 6

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

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

The decision of the Court of Appeals in Breta and Hamor vs. Lao, et al. penned by then Court of
7

Appeals Associate Justice Jose A. R. Melo, now a respected member of this Court, is persuasive,
the factual circumstances therein being of great similarity to the antecedent facts of the case at
bench:

Protection must be afforded small homeowners who toil and save if only to purchase on
installment a tiny home lot they can call their own. The consuming dream of every Filipino is
to be able to buy a lot, no matter how small, so that he may somehow build a house. It has,
however, been seen of late that these honest, hard-living individuals are taken advantage of,
with the delivery of titles delayed, the subdivision facilities, including the most essential such
as water installations not completed, or worse yet, as in the instant case, after almost
completing the payments for the property and after constructing a house, the buyer is
suddenly confronted by the stark reality, contrived or otherwise, in which another person
would now appear to be owner.

xxx xxx xxx

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

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

As to the second issue of non-privity, petitioner avers that, in view of the provisions of Article
1311 of the Civil Code, PNB, being a "total stranger to the land purchase agreement," cannot be
made to take the developer's place. 1aшphi1

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

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

Privity of contracts as a defense does not apply in this case for the law explicitly grants to the
buyer the option to pay the installment payment for his lot or unit directly to the mortgagee
(petitioner), which is required to apply such payments to reduce the corresponding portion of the
mortgage indebtedness secured by the particular lot or unit being paid for. And, as stated earlier, this
is without prejudice to petitioner Bank's seeking relief against the subdivision developer.

Finally, before closing this Resolution, we enjoin petitioner Bank to focus not only on the strictly
legal issues involved in this case but also to take another look at the larger issues including social
justice and the protection of human rights as enshrined in the Constitution; firstly, because legal
issues are raised and decided not in a vacuum but within the context of existing social, economic
and political conditions, law being merely a brick in the up- building of the social edifice; and
secondly, petitioner, being THE state bank, is for all intents and purposes an instrument for the
implementation of state policies so cherished in our fundamental law. These consideration are
obviously far more weighty than the winning of any particular suit or the acquisition of any specific
property. Thus, as the country strives to move ahead towards economic self-sufficiency and to
achieve dreams of "NIC-hood" and social well-being for the majority of our countrymen, we hold that
petitioner Bank, the premier bank in the country, which has in recent years made record earnings
and acquired an enviable international stature, with branches and subsidiaries in key financial
centers around the world, should be equally as happy with the disposition of this case as the private
respondents, who were almost deprived and dispossessed of their very homes purchased through
their hard work and with their meager savings.

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

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

G.R. No. 168129 April 24, 2007

COMMISSIONER OF INTERNAL REVENUE, Petitioner,

vs.
PHILIPPINE HEALTH CARE PROVIDERS, INC., Respondent.

DECISION
SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Review on Certiorari under Rule 45 of the 1997 Rules of
Civil Procedure, as amended, seeking to reverse the Decision1 dated February 18, 2005 and
Resolution dated May 9, 2005 of the Court of Appeals (Fifteenth Division) in CA-G.R. SP No. 76449.

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

The Philippine Health Care Providers, Inc., herein respondent, is a corporation organized and
existing under the laws of the Republic of the Philippines. Pursuant to its Articles of
Incorporation,2 its primary purpose is "To establish, maintain, conduct and operate a prepaid group
practice health care delivery system or a health maintenance organization to take care of the sick
and disabled persons enrolled in the health care plan and to provide for the administrative, legal, and
financial responsibilities of the organization."
1^vvphi1.net

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

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

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

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

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

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

On January 27, 2000, petitioner CIR sent respondent a letter demanding payment of "deficiency
VAT" in the amount of ₱100,505,030.26 and DST in the amount of ₱124,196,610.92, or a total of
₱224,702,641.18 for taxable years 1996 and 1997. Attached to the demand letter were four (4)
assessment notices.

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

Petitioner CIR did not take any action on respondent's protests. Hence, on September 21, 2000,
respondent filed with the Court of Tax Appeals (CTA) a petition for review, docketed as CTA Case
No. 6166.
On April 5, 2002, the CTA rendered its Decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the instant Petition for Review is PARTIALLY GRANTED.
Petitioner is hereby ORDERED TO PAY the deficiency VAT amounting to ₱22,054,831.75 inclusive
of 25% surcharge plus 20% interest from January 20, 1997 until fully paid for the 1996 VAT
deficiency and ₱31,094,163.87 inclusive of 25% surcharge plus 20% interest from January 20, 1998
until paid for the 1997 VAT deficiency. Accordingly, VAT Ruling No. 231-88 is declared void and
1awphi1.nét

without force and effect. The 1996 and 1997 deficiency DST assessment against petitioner is hereby
CANCELLED AND SET ASIDE. Respondent is ORDERED to DESIST from collecting the said DST
deficiency tax.

SO ORDERED.

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

In its Resolution3 dated March 23, 2003, the CTA granted respondent's motion, thus:

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

SO ORDERED.

The CTA held:

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

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

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

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

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

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

Petitioner CIR filed a motion for reconsideration, but it was denied by the appellate court in its
Resolution4 dated May 9, 2005.

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

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

Section 1025 of the National Internal Revenue Code of 1977, as amended by E.O. No. 273 (VAT
Law) and R.A. No. 7716 (E-VAT Law), provides:

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

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

Section 1036 of the same Code specifies the exempt transactions from the provision of Section 102,
thus:

SEC. 103. Exempt Transactions. - The following shall be exempt from the value-added tax:

xxx

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

xxx

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

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

From the foregoing, the CTA made the following conclusions:

a) Respondent "is not actually rendering medical service but merely acting as a
conduit between the members and their accredited and recognized hospitals and
clinics."

b) It merely "provides and arranges for the provision of pre-need health care services
to its members for a fixed prepaid fee for a specified period of time."

c) It then "contracts the services of physicians, medical and dental practitioners,

clinics and hospitals to perform such services to its enrolled members;" and

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

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

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

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

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

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

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

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

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

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

This Court has consistently reaffirmed its ruling in ABS-CBN Broadcasting Corp. in the later cases
of Commissioner of Internal Revenue v. Borroughs, Ltd.,12 Commissioner of Internal Revenue v.
Mega Gen. Mdsg. Corp.13 Commissioner of Internal Revenue v. Telefunken Semiconductor (Phils.)
Inc.,14 and Commissioner of Internal Revenue v. Court of Appeals.15 The rule is that the BIR rulings
have no retroactive effect where a grossly unfair deal would result to the prejudice of the taxpayer,
as in this case.

More recently, in Commissioner of Internal Revenue v. Benguet Corporation,16 wherein the taxpayer
was entitled to tax refunds or credits based on the BIR's own issuances but later was suddenly
saddled with deficiency taxes due to its subsequent ruling changing the category of the taxpayer's
transactions for the purpose of paying its VAT, this Court ruled that applying such ruling retroactively
would be prejudicial to the taxpayer.

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

ANGELINA SANDOVAL GUTIERREZ

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice
Chairperson

RENATO C. CORONA ADOLFO S. AZCUNA

Associate Justice Asscociate Justice

CANCIO C. GARCIA
Associate Justice

CERTIFICATION

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

REYNATO S. PUNO
Chief Justice

Footnotes

1
Rollo, pp. 36-43. Penned by Associate Justice Rosmari D. Carandang and concurred in by
Associate Justice Remedios Salazar-Fernando and Associate Justice Monina Arevalo-
Zenarosa.

2
Id., pp. 86-99.

3
Id., pp. 46-57.

4
Id., p. 45.

5
Now Section 108 of the National Internal Revenue Code of 1997.

6
Now Section 109 (l) of the National Internal Revenue Code of 1997.

7
G.R. No. 153866, February 11, 2005, 451 SCRA 132.

8
G.R. No. 150154, August 9, 2005, 466 SCRA 211.
 9
Far East Bank and Trust Co. v. Court of Appeals, G.R. No. 129130, December 9, 2005, 477
SCRA 49, 52, citing Commissioner of Internal Revenue v. Court of Appeals, 301 SCRA 152
(1999).

10
G.R. No. 165523, August 18, 2005, 467 SCRA 390.

11
G.R. No. 52306, October 12, 1981, 108 SCRA 142.

12
G.R. No. 66653, June 19, 1986, 142 SCRA 324.

13
G.R. No. 59315, September 30, 1988, 166 SCRA 166.

14
G.R. No. 103915, October 23, 1995, 249 SCRA 401.

15
G.R. No. 117982, February 6, 1997, 267 SCRA 557.

16
G.R. Nos. 134587-88, July 8, 2005, 463 SCRA 28.

G.R. No. 137873 April 20, 2001

D. M. CONSUNJI, INC., petitioner,

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

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

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

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

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

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

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

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

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

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

2. P10,000.00 as actual and compensatory damages.

3. P464,000.00 for the loss of Jose A. Juego’s earning capacity.

4. P100,000.00 as moral damages.

5. P20,000.00 as attorney’s fees, plus the costs of suit.

SO ORDERED. 2

On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision on the following grounds:

 THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT

WAS ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE OF
PETITIONER.

 THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES

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

 THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS

PRESUMED NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE, AND

 THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT

PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL CODE. 3

Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible.
The CA ruled otherwise. It held that said report, being an entry in official records, is an exception to
the hearsay rule.

The Rules of Court provide that a witness can testify only to those facts which he knows of his
personal knowledge, that is, which are derived from his perception. A witness, therefore, may not
4

testify as what he merely learned from others either because he was told or read or heard the same.
Such testimony is considered hearsay and may not be received as proof of the truth of what he has
learned.5 This is known as the hearsay rule.

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

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

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

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

In Africa, et al. vs. Caltex (Phil.), Inc., et al., this Court, citing the work of Chief Justice Moran,
10

enumerated the requisites for admissibility under the above rule:

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

(b) that it was made by the public officer in the performance of his duties, or by such other
person in the performance of a duty specially enjoined by law; and
 (c) that the public officer or other person had sufficient knowledge of the facts by him stated,
which must have been acquired by him personally or through official information.

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

The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial
court. In Rodriguez vs. Court of Appeals, which involved a Fire Investigation Report, the officer who
11

signed the fire report also testified before the trial court. This Court held that the report was
inadmissible for the purpose of proving the truth of the statements contained in the report but
admissible insofar as it constitutes part of the testimony of the officer who executed the report.

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

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

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

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

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

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

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

Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the
statements contained therein but is admissible insofar as it constitutes part of the testimony of PO3
Villanueva.

In any case, the Court holds that portions of PO3 Villanueva’s testimony which were of his personal
knowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3
Villanueva had seen Juego’s remains at the morgue, making the latter’s death beyond dispute. PO3
12

Villanueva also conducted an ocular inspection of the premises of the building the day after the
incident and saw the platform for himself. He observed that the platform was crushed and that it
13 14 15

was totally damaged. PO3 Villanueva also required Garcia and Fabro to bring the chain block to the
16

police headquarters. Upon inspection, he noticed that the chain was detached from the lifting
machine, without any pin or bolt.17

What petitioner takes particular exception to is PO3 Villanueva’s testimony that the cause of the fall
of the platform was the loosening of the bolt from the chain block. It is claimed that such portion of
the testimony is mere opinion. Subject to certain exceptions, the opinion of a witness is generally
18

not admissible.19

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

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

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

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

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

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

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

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

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

No worker is going to fall from the 14th floor of a building to the basement while performing
work in a construction site unless someone is negligent[;] thus, the first requisite for the
application of the rule of res ipsa loquitur is present. As explained earlier, the construction
site with all its paraphernalia and human resources that likely caused the injury is under the
exclusive control and management of appellant[;] thus[,] the second requisite is also present.
No contributory negligence was attributed to the appellee’s deceased husband[;] thus[,] the
last requisite is also present. All the requisites for the application of the rule of res ipsa
loquitur are present, thus a reasonable presumption or inference of appellant’s negligence
arises. x x x.24
Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but
argues that the presumption or inference that it was negligent did not arise since it "proved that it
exercised due care to avoid the accident which befell respondent’s husband."

Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
defendant’s negligence is presumed or inferred when the plaintiff establishes the requisites for the
25

application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements,
the burden then shifts to defendant to explain. The presumption or inference may be rebutted or
26

overcome by other evidence and, under appropriate circumstances disputable presumption, such as
that of due care or innocence, may outweigh the inference. It is not for the defendant to explain or
27

prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of
say, due care, comes into play only after the circumstances for the application of the doctrine has
been established. 1âwphi1.nêt

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

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

Petitioner is correct. Fabro’s sworn statement is hearsay and inadmissible. Affidavits are
inadmissible as evidence under the hearsay rule, unless the affiant is placed on the witness stand to
testify thereon. The inadmissibility of this sort of evidence is based not only on the lack of
28

opportunity on the part of the adverse party to cross-examine the affiant, but also on the commonly
known fact that, generally, an affidavit is not prepared by the affiant himself but by another who uses
his own language in writing the affiant’s statements which may either be omitted or misunderstood
by the one writing them. Petitioner, therefore, cannot use said statement as proof of its due care any
29

more than private respondent can use it to prove the cause of her husband’s death. Regrettably,
petitioner does not cite any other evidence to rebut the inference or presumption of negligence
arising from the application of res ipsa loquitur, or to establish any defense relating to the incident.

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

Article 173 of the Labor Code states:

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

The precursor of Article 173 of the Labor Code, Section 5 of the Workmen’s Compensation Act,
provided that:
 Section 5. Exclusive right to compensation. – The rights and remedies granted by this Act to
an employee by reason of a personal injury entitling him to compensation shall exclude all
other rights and remedies accruing to the employee, his personal representatives,
dependents or nearest of kin against the employer under the Civil Code and other laws
because of said injury x x x.

Whether Section 5 of the Workmen’s Compensation Act allowed recovery under said Act as well as
under the Civil Code used to be the subject of conflicting decisions. The Court finally settled the
matter in Floresca vs.Philex Mining Corporation, which involved a cave-in resulting in the death of
30

the employees of the Philex Mining Corporation. Alleging that the mining corporation, in violation of
government rules and regulations, failed to take the required precautions for the protection of the
employees, the heirs of the deceased employees filed a complaint against Philex Mining in the Court
of First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the complaint for lack of
jurisdiction. The heirs sought relief from this Court.

Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En
Banc, following the rule in Pacaña vs. Cebu Autobus Company, held in the affirmative.
31

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

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

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

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

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

The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime
Corporation vs. Avelino, Vda. De Severo vs. Feliciano-Go, and Marcopper Mining Corp. vs.
32 33

Abeleda. In the last case, the Court again recognized that a claimant who had been paid under the
34

Act could still sue under the Civil Code. The Court said:

In the Robles case, it was held that claims for damages sustained by workers in the course
of their employment could be filed only under the Workmen’s Compensation Law, to the
exclusion of all further claims under other laws. In Floresca, this doctrine was abrogated in
favor of the new rule that the claimants may invoke either the Workmen’s Compensation Act
or the provisions of the Civil Code, subject to the consequence that the choice of one
remedy will exclude the other and that the acceptance of compensation under the remedy
chosen will preclude a claim for additional benefits under the other remedy. The exception is
where a claimant who has already been paid under the Workmen’s Compensation Act may
still sue for damages under the Civil Code on the basis of supervening facts or developments
occurring after he opted for the first remedy. (Underscoring supplied.)

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

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

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

x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her
educational attainment; that she did not know what damages could be recovered from the
death of her husband; and that she did not know that she may also recover more from
the Civil Code than from the ECC. x x x.36

Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her
complaint that her application and receipt of benefits from the ECC were attended by ignorance or
mistake of fact. Not being an issue submitted during the trial, the trial court had no authority to hear
or adjudicate that issue."

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

When a party having knowledge of the facts makes an election between inconsistent remedies, the
election is final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the
absence of fraud by the other party. The first act of election acts as a bar. Equitable in nature, the
37

doctrine of election of remedies is designed to mitigate possible unfairness to both parties. It rests on
the moral premise that it is fair to hold people responsible for their choices. The purpose of the
doctrine is not to prevent any recourse to any remedy, but to prevent a double redress for a single
wrong.38

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

Waiver is the intentional relinquishment of a known right.39

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

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

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

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

It is in light of the foregoing principles that we address petitioner’s contentions.

Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her
complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to
burden private respondent with raising waiver as an issue. On the contrary, it is the defendant who
ought to plead waiver, as petitioner did in pages 2-3 of its Answer; otherwise, the defense is waived.
41

It is, therefore, perplexing for petitioner to now contend that the trial court had no jurisdiction over the
issue when petitioner itself pleaded waiver in the proceedings before the trial court.

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

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

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

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

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

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

Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the
total amount private respondent ought to receive from the ECC, although it appears from Exhibit
"K" that she received P3,581.85 as initial payment representing the accrued pension from
43

November 1990 to March 1991. Her initial monthly pension, according to the same Exhibit "K," was
P596.97 and present total monthly pension was P716.40. Whether the total amount she will
eventually receive from the ECC is less than the sum of P644,000.00 in total damages awarded by
the trial court is subject to speculation, and the case is remanded to the trial court for such
determination. Should the trial court find that its award is greater than that of the ECC, payments
already received by private respondent under the Labor Code shall be deducted from the trial court'’
award of damages. Consistent with our ruling in Floresca, this adjudication aims to prevent double
compensation.

WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine
whether the award decreed in its decision is more than that of the ECC. Should the award decreed
by the trial court be greater than that awarded by the ECC, payments already made to private
respondent pursuant to the Labor Code shall be deducted therefrom. In all other respects, the
Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

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

Footnote

1
Exhibit "A," Records, pp. 60-61.

2
Rollo, pp. 79-80.

3
Id., at 19.

4
Sec. 36, Rule 130.

5
People vs. Ramos, 122 SCRA 312 (1983).

6
31A C.J.S. Evidence § 194. See also Philippine Home Assurance Corp. vs. Court of
Appeals, 257 SCRA 479 (1996).

7
5 J. H. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at
Common Law 3 (3rd Ed.).

8
San Sebastian College vs. Court of Appeals, 197 SCRA 138 (1991).

9
See Rules of Court, Rule 130, Sections 37-47.

10
16 SCRA 448 (1966). See also People vs. San Gabriel, 253 SCRA 84 (1996).

11
273 SCRA 607 (1997).
12
TSN, December 20, 1991, p. 9.

13
Id., at 28; TSN, January 6, 1992, p. 29.

14
Id., at 29; Ibid.

15
Id., at 33.

16
Id., at 34.

17
Id., at 24 and 28.

18
Rules of Court, Rule 130, Sections 49-50.

19
Id., Sec. 48.

Layugan vs. Intermediate Appellate Court, 167 SCRA 363 (1988). See also Batiquin vs.
20

Court of Appeals, 258 SCRA 334 (1996); Radio Communications of the Philippines, Inc. vs.
Court of Appeals, 143 SCRA 657 (1986).

21
57B Am Jur 2d, Negligence § 1819.

22
Id., at 1824.

23
Id., at 1914.

24
Rollo, pp. 87-88.

Whether the doctrine raises a presumption or merely an inference is subject to debate. See
25

57B Am Jur 2d, Negligence §§ 1925-1928.

26
Id., at 1920.

27
Id., at 1947.

28
People vs. Villeza, 127 SCRA 349 (1984); People vs. Quidato, 297 SCRA 1 (1998).

29
People vs. Ramos, supra.

30
136 SCRA 141 (1985).

31
Justices Aquino, Melencio-Herrera, and Gutierrez dissented.

32
151 SCRA 333 (1987).

33
157 SCRA 446 (1988).

34
164 SCRA 317 (1988).
 35
Rollo, pp. 90-91. Underscoring by the Court of Appeals.

36
Id., at 90. Underscoring by the Court of Appeals.

37
Id., at § 5.

38
Id., at § 2.

39
Castro vs. Del Rosario, et al., 19 SCRA 196 (1967).

40
28 Am Jur 2d, Estoppel and Waiver § 202.

41
Records, pp. 17-18.

I Tolentino, A.M. Commentaries and Jurisprudence on the Civil Code of the Philippines 19
42

(1995).

43
Records, p. 100.

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

EMETERIO CUI, plaintiff-appellant,
vs.
ARELLANO UNIVERSITY, defendant-appellee.

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

E. Voltaire Garcia for defendant-appellee.

CONCEPCION, J.:

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

In the language of the decision appealed from:

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

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

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

(Sgd.) Emeterio Cui".

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

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

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

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

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

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

The issue in this case is whether the above quoted provision of the contract between plaintiff and the
defendant, whereby the former waived his right to transfer to another school without refunding to the
latter the equivalent of his scholarships in cash, is valid or not. The lower court resolved this question
in the affirmative, upon the ground that the aforementioned memorandum of the Director of Private
Schools is not a law; that the provisions thereof are advisory, not mandatory in nature; and that,
although the contractual provision "may be unethical, yet it was more unethical for plaintiff to quit
studying with the defendant without good reasons and simply because he wanted to follow the
example of his uncle." Moreover, defendant maintains in its brief that the aforementioned
memorandum of the Director of Private Schools is null and void because said officer had no
authority to issue it, and because it had been neither approved by the corresponding department
head nor published in the official gazette.
We do not deem it necessary or advisable to consider as the lower court did, the question whether
plaintiff had sufficient reasons or not to transfer from defendant University to the Abad Santos
University. The nature of the issue before us, and its far reaching effects, transcend personal
equations and demand a determination of the case from a high impersonal plane. Neither do we
deem it essential to pass upon the validity of said Memorandum No. 38, for, regardless of the same,
we are of the opinion that the stipulation in question is contrary to public policy and, hence, null and
void. The aforesaid memorandum merely incorporates a sound principle of public policy. As the
Director of Private Schools correctly pointed, out in his letter, Exhibit B, to the defendant,

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

WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered
sentencing the defendant to pay to the plaintiff the sum of P1,033.87, with interest thereon at the
legal rate from September 1, 1954, date of the institution of this case, as well as the costs, and
dismissing defendant's counterclaim. It is so ordered.
Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Barrera, Parades, Dizon, De Leon and Natividad,
JJ., concur.
Bautista Angelo, J., reserves his vote.

G.R. No. 103982 December 11, 1992

ANTONIO A. MECANO, petitioner,
vs.
COMMISSION ON AUDIT, respondent.

CAMPOS, JR., J.:

Antonio A. Mecano, through a petition for certiorari, seeks to nullify the decision of the Commission
on Audit (COA, for brevity) embodied in its 7th Indorsement, dated January 16, 1992, denying his
claim for reimbursement under Section 699 of the Revised Administrative Code (RAC), as amended,
in the total amount of P40,831.00.

Petitioner is a Director II of the National Bureau of Investigation (NBI). He was hospitalized for
cholecystitis from March 26, 1990 to April 7, 1990, on account of which he incurred medical and
hospitalization expenses, the total amount of which he is claiming from the COA.

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

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

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

xxx xxx xxx

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

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

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

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

Petitioner then re-submitted his claim to Director Lim, with a copy of Opinion No. 73, S. 1991 dated
2

April 26, 1991 of then Secretary of Justice Franklin M. Drilon (Secretary Drilon, for brevity) stating
that "the issuance of the Administrative Code did not operate to repeal or abregate in its entirety the
Revised Administrative Code, including the particular Section 699 of the latter".

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

Eventually, petitioner's claim was returned by Undersecretary of Justice Eduardo Montenegro to

Director Lim under a 9th Indorsement dated February 7, 1992, with the advice that petitioner
"elevate the matter to the Supreme Court if he so desires".

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

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

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

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

particular and specific law, identified by its number or title, is repealed is an express repeal; all
others are implied repeals.4

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

Sec. 27. Repealing Clause. — All laws, decrees, orders, rules and regulations, or
portions thereof, inconsistent with this Code are hereby repealed or modified
accordingly.
The question that should be asked is: What is the nature of this repealing clause? It is certainly not
an express repealing clause because it fails to identify or designate the act or acts that are intended
to be repealed. Rather, it is an example of a general repealing provision, as stated in Opinion No.
5

73, S. 1991. It is a clause which predicates the intended repeal under the condition that substantial
conflict must be found in existing and prior acts. The failure to add a specific repealing clause
indicates that the intent was not to repeal any existing law, unless an irreconcilable inconcistency
and repugnancy exist in the terms of the new and old laws. This latter situation falls under the
6

category of an implied repeal.

Repeal by implication proceeds on the premise that where a statute of later date clearly reveals an
intention on the part of the legislature to abrogate a prior act on the subject, that intention must be
given effect. Hence, before there can be a repeal, there must be a clear showing on the part of the
7

lawmaker that the intent in enacting the new law was to abrogate the old one. The intention to repeal
must be clear and manifest; otherwise, at least, as a general rule, the later act is to be construed as
8

a continuation of, and not a substitute for, the first act and will continue so far as the two acts are the
same from the time of the first enactment. 9

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

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

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

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

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

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

xxx xxx xxx

It argues, in effect, that what is contemplated is only one Code — the Administrative Code of 1987.
This contention is untenable.
The fact that a later enactment may relate to the same subject matter as that of an earlier statute is
not of itself sufficient to cause an implied repeal of the prior act, since the new statute may merely be
cumulative or a continuation of the old one. What is necessary is a manifest indication of legislative
12

purpose to repeal. 13

We come now to the second category of repeal — the enactment of a statute revising or codifying
the former laws on the whole subject matter. This is only possible if the revised statute or code was
intended to cover the whole subject to be a complete and perfect system in itself. It is the rule that a
subsequent statute is deemed to repeal a prior law if the former revises the whole subject matter of
the former statute. When both intent and scope clearly evidence the idea of a repeal, then all parts
14

and provisions of the prior act that are omitted from the revised act are deemed
repealed. Furthermore, before there can be an implied repeal under this category, it must be the
15

clear intent of the legislature that the later act be the substitute to the prior act.
16

According to Opinion No. 73, S. 1991 of the Secretary of Justice, what appears clear is the intent to
cover only those aspects of government that pertain to administration, organization and procedure,
understandably because of the many changes that transpired in the government structure since the
enactment of the RAC decades of years ago. The COA challenges the weight that this opinion
carries in the determination of this controversy inasmuch as the body which had been entrusted with
the implementation of this particular provision has already rendered its decision. The COA relied on
the rule in administrative law enunciated in the case of Sison vs. Pangramuyen that in the absence
17

of palpable error or grave abuse of discretion, the Court would be loathe to substitute its own
judgment for that of the administrative agency entrusted with the enforcement and implementation of
the law. This will not hold water. This principle is subject to limitations. Administrative decisions may
be reviewed by the courts upon a showing that the decision is vitiated by fraud, imposition or
mistake. It has been held that Opinions of the Secretary and Undersecretary of Justice are material
18

in the construction of statutes in pari materia. 19

Lastly, it is a well-settled rule of statutory construction that repeals of statutes by implication are not
favored. The presumption is against inconsistency and repugnancy for the legislature is presumed
20

to know the existing laws on the subject and not to have enacted inconsistent or conflicting statutes. 21

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

Regarding respondent's contention that recovery under this subject section shall bar the recovery of
benefits under the Employees' Compensation Program, the same cannot be upheld. The second
sentence of Article 173, Chapter II, Title II (dealing on Employees' Compensation and State
Insurance Fund), Book IV of the Labor Code, as amended by P.D. 1921, expressly provides that "the
payment of compensation under this Title shall not bar the recovery of benefits as provided for in
Section 699 of the Revised Administrative Code . . . whose benefits are administered by the system
(meaning SSS or GSIS) or by other agencies of the government."
WHEREFORE, premises considered, the Court resolves to GRANT the petition; respondent is
hereby ordered to give due course to petitioner's claim for benefits. No costs.

SO ORDERED.

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

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

Footnotes

1 As amended by R.A. No. 1232 dated June 7, 1955.

2 Rollo, pp. 26-30.

3 School Dist. No. 45 vs. Board of County of Comira, 141 Kan. 108.

4 AGPALO, STATUTORY CONSTRUCTION 289 (1986).

5 Iloilo Palay and Corn Planters Association, Inc. vs, Feliciano, 13 SCRA 377 (1965).

6 CRAWFORD, CONSTRUCTION OF STATUTE 631 (1940 ed.).

7 Posadas vs. National City Bank, 296 U.S. 497, 80 L. Ed. 351 (1935).

8 Maceda vs. Macaraig, 197 SCRA 771 (1991).

9 Supra, note 7.

10 Supra, note 4.

11 Villegas vs. Subido, 41 SCRA 190 (1971).

12 Valera vs. Tuason, 80 Phil. 823 (1948).

13 Jalandoni vs. Endaya, 55 SCRA 261 (1974).

14 People vs. Almuete, 69 SCRA 410, 414 (1976).

15 People vs. Benuya, 61 Phil. 208 (1916).

16 Supra, note 9.

17 84 SCRA 364 (1978).

 18 Jaculina vs. National Police Commission, 200 SCRA 489 (1991); Greenhills
Mining Co. vs. Office of the President, 163 SCRA 350 (1988).

19 Philippine Global Communications, Inc. vs. Relova, 145 SCRA 385 (1986).

20 National Power Corporation vs. Hon. Zain B. Angas, G.R. Nos. 60225-26, May 8,
1992; Maceda vs. Macaraig, 197 SCRA 771 (1991); Maddumba vs. Government
Service Insurance System, 182 SCRA 281 (1990); Larga vs. Ranada, Jr., 164 SCRA
18 (1988); De Jesus vs. People, 120 SCRA 760 (1983).

21 U.S. vs. Palacio, 33 Phil. 208 (1916).

22 Smith, Bell & Co. vs. Estate of Maronilla, 41 Phil. 557 (1916).

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

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RAFAEL LICERA, defendant-appellant.

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

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

CASTRO, J.:

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

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

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

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

Licera's appeal to the Court of Appeals was certified on October 16, 1974 to this Court as involving
only one question of law.

Licera invokes as his legal justification for his possession of the Winschester rifle his appointment as
secret agent on December 11, 1961 by Governor Feliciano Leviste of Batangas. He claims that as
secret agent, he was a "peace officer" and, thus, pursuant to People vs. Macarandang, was exempt
1

from the requirements relating to the issuance of license to possess firearms. He alleges that the
court a quo erred in relying on the later case of People vs. Mapa which held that section 879 of the
2

Revised Administrative Code provides no exemption for persons appointed as secret agents by
provincial governors from the requirements relating to firearm licenses.

The principal question thus posed calls for a determination of the rule that should be applied to the
case at bar that enunciated in Macarandang or that in Mapa.
The appointment given to Licera by Governor Leviste which bears the date "December 11, 1961"
includes a grant of authority to Licera to possess the Winchester rifle in these terms: "In accordance
with the decision of the Supreme Court in G.R. No. L-12088 dated December 23, 1959, you will have
the right to bear a firearm ... for use in connection with the performance of your duties." Under the
rule then prevailing, enunciated in Macarandang, the appointment of a civilian as a "secret agent to
3

assist in the maintenance of peace and order campaigns and detection of crimes sufficiently put[s]
him within the category of a "peace officer" equivalent even to a member of the municipal police"
whom section 879 of the Revised Administrative Code exempts from the requirements relating to
firearm licenses.

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

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

Pursuant to the Macarandang rule obtaining not only at the time of Licera's appointment as secret
agent, which appointment included a grant of authority to possess the Winchester rifle, but as well at
the time as of his apprehension, Licera incurred no criminal liability for possession of the said rifle,
notwithstanding his non-compliance with the legal requirements relating to firearm licenses. 1äwphï1.ñët

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

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

Teehankee, J., is on leave.

Footnotes

1 L-12088, December 23, 1959, 106 Phil. 713.

2 L-22301, August 30, 1967, 20 SCRA 1164.

3 Vide People vs. Lucero, L-10845, April 28,1958, 103 Phil. 500.
 4 People vs. Jabinal, L-30061, February 27, 1974, 55 SCRA 607. Vide Senarillos vs.
Hermosisima, L-10662, December 14, 1956, 100 Phil. 501.

5 People vs. Jabinal, ibid.

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

CHU JAN, plaintiff-appellee,
vs.
LUCIO BERNAS, defendant-appellant.

Sulpicio V. Cea for appellant.

ARAULLO, J.:

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

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

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

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

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

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

Moreland, J., took no part.

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

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

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

THE PEOPLE OF THE PHILIPPINES, petitioner,

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

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

THE PEOPLE OF THE PHILIPPINES, petitioner,

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

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

THE PEOPLE OF THE PHILIPPINES, petitioner,

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

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

Norberto Parto for respondents Candelosas, Baes and Garcia.

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

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

Norberto L. Apostol for respondent Panchito Refuncion.

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

MUÑOZ PALMA, J.:

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

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

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

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

A — The Information filed by the People —

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

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

DURAN, accused.

Crim. Case No. 19639

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

INFORMATION

The undersigned accuses PORFIRIO CANDELOSAS Y DURAN of a violation of

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

That on or about the 14 th day of December, 1974, in the City of Manila, Philippines,
the said accused did then and there wilfully, unlawfully, feloniously and knowingly
have in his possession and under his custody and control one (1) carving knife with a
blade of 6-½ inches and a wooden handle of 5-1/4 inches, or an overall length of 11-
¾ inches, which the said accused carried outside of his residence, the said weapon
not being used as a tool or implement necessary to earn his livelihood nor being
used in connection therewith.

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

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

2. In L-46229-32 and L-46313-16, the Information filed with the Court presided by Judge Maceren
follows:
 THE PEOPLE OF THE PHILIPPINES, plaintiff, versus REYNALDO LAQUI Y
AQUINO, accused.

CRIM.
CASE
NO.
29677

VIOL.
OF
PAR.
3,

PD 9
IN
REL.
TO LOI

No.
266 of
the
Chief

Executi
ve
dated
April 1,
1975

INFORMATION

The undersigned accuses REYNALDO LAQUI Y AQUINO of a VIOLATION OF

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

That on or about the 28 th day of January, 1977, in the City of Manila, Philippines,
the said accused did then and there wilfully, unlawfully and knowingly carry outside
of his residence a bladed and pointed weapon, to wit: an ice pick with an overall
length of about 8½ inches, the same not being used as a necessary tool or
implement to earn his livelihood nor being used in connection therewith.

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

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

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

PEOPLE OF THE PHILIPPINES, complainant, versus PANCHITO REFUNCION,

accused.
 CRIM.
CASE
NO.
933

For:

ILLEG
AL
POSS
ESSIO
N OF

DEAD
LY
WEAP
ON

(VIOLA
TION
OF PD
NO. 9)

INFORMATION

The undersigned First Assistant Provincial Fiscal of Samar, accuses PANCHITO

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

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

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

B. — The Orders of dismissal —

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

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

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

xxx xxx xxx

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

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

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

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

xxx xxx xxx

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

xxx xxx xxx

 The mere carrying outside of one's residence of these deadly weapons if not
concealed in one's person and if not carried in any of the aforesaid specified places,
would appear to be not unlawful and punishable by law.

With the promulgation of Presidential Decree No. 9, however, the prosecution,

through Assistant Fiscal Hilario H. Laqui, contends in his opposition to the motion to
quash, that this act is now made unlawful and punishable, particularly by paragraph
3 thereof, regardless of the intention of the person carrying such weapon because
the law makes it "mala prohibita". If the contention of the prosecution is correct, then
if a person happens to be caught while on his way home by law enforcement officers
carrying a kitchen knife that said person had just bought from a store in order that
the same may be used by one's cook for preparing the meals in one's home, such
person will be liable for punishment with such a severe penalty as imprisonment from
five to ten years under the decree. Such person cannot claim that said knife is going
to be used by him to earn a livelihood because he intended it merely for use by his
cook in preparing his meals.

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

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

xxx xxx xxx

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

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

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

xxx xxx xxx

It is public knowledge that in rural areas, even before and during martial law, as a
matter of status symbol, carrying deadly weapons is very common, not necessarily
 for committing a crime nor as their farm implement but for self-preservation or self-
defense if necessity would arise specially in going to and from their farm. (pp. 18-19,
rollo of L-46997)

In most if not all of the cases, the orders of dismissal were given before arraignment of the accused.
In the criminal case before the Court of (First Instance of Samar the accused was arraigned but at
the same time moved to quash the Information. In all the cases where the accused were under
arrest, the three Judges ordered their immediate release unless held on other charges.

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

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

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

PRESIDENTIAL DECREE NO. 9

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

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

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

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

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

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

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

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

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

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

Court/Tribunal/Commission may direct, it the firearm involved in the violation is
unlicensed and is attended by assault upon, or resistance to persons in authority or
their agents in the performance of their official functions resulting in death to said
persons in authority or their agent; or if such unlicensed firearm is used in the
commission of crimes against persons, property or chastity causing the death of the
victim used in violation of any other General Orders and/or Letters of Instructions
promulgated under said Proclamation No. 1081:
 (b) The penalty of imprisonment ranging from twenty years to life imprisonment as a
Military Court/Tribunal/commission may direct, when the violation is not attended by
any of the circumstances enumerated under the preceding paragraph;

(c) The penalty provided for in the preceding paragraphs shall be imposed upon the
owner, president, manager, members of the board of directors or other responsible
officers of any public or private firms, companies, corporations or entities who shall
willfully or knowingly allow any of the firearms owned by such firm, company,
corporation or entity concerned to be used in violation of said General Orders Nos. 6
and 7.

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

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

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

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

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

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

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

(SGD) FERDINAND E.
MARCOS

Presid
ent

Republic of the
Philippines

D. — The arguments of the People —

In the Comment filed in these cases by the Solicitor General who as stated earlier joins the City
Fiscal of Manila and the Provincial Fiscal of Samar in seeking the setting aside of the questioned
orders of dismissal, the main argument advanced on the issue now under consideration is that a
perusal of paragraph 3 of P.D. 9 'shows that the prohibited acts need not be related to subversive
activities; that the act proscribed is essentially a malum prohibitum penalized for reasons of public
policy.
1

The City Fiscal of Manila in his brief adds further that in statutory offenses the intention of the
accused who commits the act is immaterial; that it is enough if the prohibited act is voluntarily
perpetuated; that P.D. 9 provides and condemns not only the carrying of said weapon in connection
with the commission of the crime of subversion or the like, but also that of criminality in general, that
is, to eradicate lawless violence which characterized pre-martial law days. It is also argued that the
real nature of the criminal charge is determined not from the caption or preamble of the information
nor from the specification of the provision of law alleged to have been violated but by the actual
recital of facts in the complaint or information.
2

E. — Our Ruling on the matter —

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

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

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

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

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

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

We do not agree with petitioner that the above-mentioned statute and the city ordinance are deemed
repealed by P.D. 9 (3). P. D. 9(3) does not contain any repealing clause or provision, and repeal by
5

implication is not favored. This principle holds true with greater force with regards to penal statutes
6

which as a rule are to be construed strictly against the state and liberally in favor of the accused. In
7

fact, Article 7 of the New Civil Code provides that laws are repealed only by subsequent ones and
their violation or non- observance shall not be excused by disuse, or custom or practice to the
contrary.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

xxx xxx xxx

From the above it is clear that the acts penalized in P.D. 9 are those related to
the desired result of Proclamation 1081 and General Orders Nos. 6 and 7. General
Orders Nos. 6 and 7 refer to firearms and therefore have no relevance to P.D. 9(3)
which refers to blunt or bladed weapons. With respect to Proclamation 1081 some of
the underlying reasons for its issuance are quoted hereunder:
 WHEREAS, these lawless elements having taken up arms against our duly
constituted government and against our people, and having committed and are still
committing acts of armed insurrection and rebellion consisting of armed raids, forays,
sorties, ambushes, wanton acts of murders, spoilage, plunder, looting, arsons,
destruction of public and private buildings, and attacks against innocent and
defenseless civilian lives and property, all of which activities have seriously
endangered and continue to endanger public order and safety and the security of the
nation, ...

xxx xxx xxx

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

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

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

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

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

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

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

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

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

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

American jurisprudence sets down the reason for this rule to be "the tenderness of the law of the
rights of individuals; the object is to establish a certain rule by conformity to which mankind would be
safe, and the discretion of the court limited." The purpose is not to enable a guilty person to
11

escape punishment through a technicality but to provide a precise definition of forbidden acts. 12

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

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

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

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

F. The Informations filed by petitioner are fatally defective.

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

the elements of the crime, the quashing of the accusation is in order.

Section 2(a), Rule 117 of the Rules of Court provides that the defendant may move to quash the
complaint or information when the facts charged do not constitute an offense.
In U.S.U. Gacutan, 1914, it was held that where an accused is charged with knowingly rendering an
unjust judgment under Article 204 of the Revised Penal Code, failure to allege in the Information that
the judgment was rendered knowing it to be unjust, is fatal. 14

In People v. Yadao, 1954, this Court through then Justice Cesar Bengzon who later became Chief
Justice of the Court affirmed an order of the trial court which quashed an Information wherein the
facts recited did not constitute a public offense as defined in Section 1, Republic Act 145. 15

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

Pertinent provisions of the Rules of Court follow:

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

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

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

xxx xxx xxx

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

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

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

Section 8. Rule 117 states that:

An order sustaining the motion to quash is not a bar to another prosecution for the
same offense unless the motion was based on the grounds specified in section 2,
subsections (f) and (h) of this rule.
Under the foregoing, the filing of another complaint or Information is barred only when the criminal
action or liability had been extinguished (Section 2[f]) or when the motion to quash was granted for
reasons of double jeopardy. (ibid., [h])

As to whether or not a plea of double jeopardy may be successfully invoked by the accused in all
these cases should new complaints be filed against them, is a matter We need not resolve for the
present.

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

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

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

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

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

Without costs.

SO ORDERED.

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

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

Aquino, J, took no part.

Separate Opinions

BARREDO, J., concurring.

I concur with the qualification that under existing jurisprudence conviction is possible, without the
need of amending the information, for violation of other laws or ordinances on concealment of
deadly weapons.

Makasiar, J, concurs.

CONCEPCION, JR., J, concurring:

I concur with the additional observation that accused could properly be convicted of a violation of Act
1780 of the Philippine Commission or of the ordinance.

Separate Opinions

BARREDO, J., concurring.

I concur with the qualification that under existing jurisprudence conviction is possible, without the
need of amending the information, for violation of other laws or ordinances on concealment of
deadly weapons.

Makasiar, J, concurs.

CONCEPCION, JR., J, concurring:

I concur with the additional observation that accused could properly be convicted of a violation of Act
1780 of the Philippine Commission or of the ordinance.

Footnotes

1 p. 118, rollo of L-42050-66.

2 pp. 10-11, brief of Petitioner at p. 218, Ibid.

3 Art. IV, Sec. 19, 1973 Constitution.

4 Francisco on the Revised Rules of Court, 1969 Ed., Vol. on Criminal Procedure, p.
86.

5 pp. 33-34 brief of Petitioner filed by the City Fiscal of Manila.

6 Valera v. Tuason, Jr., et al., 80 Phil. 823, citing U.S. v. Palacio, 33 Phil. 208;
Quisumbing v. Lachica, 2 SCRA 182; Almeda v. Florentino, 15 SCRA 514; Lechoco
v. Civil Aeronautics Board, 43 SCRA 670.

7 People v. Elkanish, 1951, 90 Phil. 53, 57 People v. Yadao, 1954, 94 Phil. 726, 728.

8 33 SCRA 105. See also 73 Am Jur 2d 351 citing United States v. N.E. Rosenblum
Truck Lines, Inc., 315 US 50,86 L Ed 671; United States v. Stone & Downer Co., 274
US 225, 71 L Ed 1013; Ebert v. Poston, 266 US 548, 69 L Ed 435; Wisconsin C.R.
Co. v. Forsythe, 159 US 46,40 L Ed 71.

9 13 SCRA 449, 453; Emphasis supplied.

9-a 73 Am Jur 2d 428.

10 See 73 Am Jur 2d 432-433 for cases on the foregoing undesirable

consequences.

11 United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin

Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d 549; Jennings v.
Commonwealth, 109 Va 821, 63 SE 1080, all cited in 73 Am Jur 2d 452.

12 State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory

Construction, Rev. Ed. pp. 183-184.

13 People v. Supnad, 7 SCRA 603, 606.

14 28 Phil. See Moran, Comments on the Rules of Court, 1970 Ed., Vol. 4, p. 222.

15 94 Phil. 726.

16 People v. Plaza, 7 SCRA 617.

17 This letter which was addressed to the City Fiscal of Manila referred to a decision
of the Court of First Instance of Manila, Branch III, in Criminal Case No. 21178,
"People vs. Conrado C. Petate, "for violation of Presidential Decree No. 9.
 ARTICLES 11 – 18 NEW CIVIL CODE

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

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

vs.
WILLIAM VAN BUSKIRK, defendant-appellant.

Lionel D. Hargis for appellant.

Sanz and Oppisso for appellee.

MORELAND, J.:

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

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

xxx xxx xxx

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held:
 That evidence that a servant, whom traders employed to deliver goods, upon stopping with
his horse and wagon to deliver a parcel at a house from fifty to a hundred rods from a
railroad crossing, left the horse unfastened for four or five minutes while he was in the house,
knowing that it was not afraid of cars, and having used it for three or four months without
ever hitching it or knowing it to start, is not conclusive, as a matter of law, of a want of due
care on his part.

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

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

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

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

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

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

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

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

Separate Opinions

TORRES, J., dissenting:

I am of the opinion that the judgment should be affirmed.

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

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

Montesa, Albon, & Associates for petitioners.

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

CORTES, J.:

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

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

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

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

(2) Sze Sook Wah, Sze Lai Cho and Sze Chun Yen are the legitimate children of Yao
Kee with Sy Mat [CFI decision, pp. 28-31; Rollo. pp. 65-68;] and,
 (3) Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy are the
acknowledged illegitimate offsprings of Sy Kiat with Asuncion Gillego [CFI decision,
pp. 27-28; Rollo, pp. 64- 65.]

held if favor of the oppositors (petitioners herein) and appointed Sze Sook Wah as the administratrix
of the intestate estate of the deceased [CFI decision, pp. 68-69; Rollo, pp. 105-106.]

On appeal the Court of Appeals rendered a decision modifying that of the probate court, the
dispositive portion of which reads:

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

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

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

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

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

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

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

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

The instant petition, on the other hand, questions paragraphs (1) and (2) of the dispositive portion of
the decision of the Court of Appeals. This petition was initially denied by the Supreme Court on June
22, 1981. Upon motion of the petitioners the Court in a resolution dated September 16, 1981
reconsidered the denial and decided to give due course to this petition. Herein petitioners assign the
following as errors:
 I. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DECLARING THE
MARRIAGE OF SY KIAT TO YAO YEE AS NOT HAVE (sic) BEEN PROVEN VALID
IN ACCORDANCE WITH LAWS OF THE PEOPLE'S REPUBLIC OF CHINA.

II. RESPONDENT COURT OF APPEALS GRAVELY ERRED IN DECLARING AIDA

SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE AND RODOLFO SY AS
NATURAL CHILDREN OF SY KIAT WITH ASUNCION GILLEGO. [Petition, p. 2;
Rollo, p. 6.]

I. Petitioners argue that the marriage of Sy Kiat to Yao Kee in accordance with Chinese law and
custom was conclusively proven. To buttress this argument they rely on the following testimonial and
documentary evidence.

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

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

Second, the testimony of Gan Ching, a younger brother of Yao Kee who stated that he was among
the many people who attended the wedding of his sister with Sy Kiat and that no marriage certificate
is issued by the Chinese government, a document signed by the parents or elders of the parties
being sufficient [CFI decision, pp. 15-16; Rollo, pp.
52-53.]

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

Fourth, Sy Kiat's Master Card of Registered Alien issued in Caloocan City on October 3, 1972 where
the following entries are found: "Marital status—Married"; "If married give name of spouses—Yao
Kee"; "Address-China; "Date of marriage—1931"; and "Place of marriage—China" [Exhibit "SS-1".]

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

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

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

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

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

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

Construing this provision of law the Court has held that to establish a valid foreign marriage two
things must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the
alleged foreign marriage by convincing evidence [Adong v. Cheong Seng Gee, 43 Phil. 43, 49
(1922).]

In proving a foreign law the procedure is provided in the Rules of Court. With respect to
an unwritten foreign law, Rule 130 section 45 states that:

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

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

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

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

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

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

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

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

Moreover a reading of said case would show that the party alleging the foreign marriage presented a
witness, one Li Ung Bieng, to prove that matrimonial letters mutually exchanged by the contracting
parties constitute the essential requisite for a marriage to be considered duly solemnized in China.
Based on his testimony, which as found by the Court is uniformly corroborated by authors on the
subject of Chinese marriage, what was left to be decided was the issue of whether or not the fact of
marriage in accordance with Chinese law was duly proven [Sy Joc Lieng v. Sy Quia, supra., at p.
160.]

Further, even assuming for the sake of argument that the Court has indeed taken judicial notice of
the law of China on marriage in the aforecited case, petitioners however have not shown any proof
that the Chinese law or custom obtaining at the time the Sy Joc Lieng marriage was celebrated in
1847 was still the law when the alleged marriage of Sy Kiat to Yao Kee took place in 1931 or eighty-
four (84) years later.

Petitioners moreover cite the case of U.S. v. Memoracion [34 Phil. 633 (1916)] as being applicable
to the instant case. They aver that the judicial pronouncement in the Memoracion case, that the
testimony of one of the contracting parties is competent evidence to show the fact of marriage, holds
true in this case.

The Memoracion case however is not applicable to the case at bar as said case did not concern a
foreign marriage and the issue posed was whether or not the oral testimony of a spouse is
competent evidence to prove the fact of marriage in a complaint for adultery.

Accordingly, in the absence of proof of the Chinese law on marriage, it should be presumed that it is
the same as ours *** [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March 31, 1965, 13 SCRA 552, 555.] Since Yao Kee admitted in her
testimony that there was no solemnizing officer as is known here in the Philippines [See Article 56, Civil Code] when her alleged marriage to
Sy Mat was celebrated [CFI decision, p. 14; Rollo, p. 51], it therefore follows that her marriage to Sy Kiat, even if true, cannot be recognized
in this jurisdiction [Wong Woo Yiu v. Vivo, supra., pp. 555-556.]

II. The second issue raised by petitioners concerns the status of private respondents.

Respondent court found the following evidence of petitioners' filiation:

(1) Sy Kiat's Master Card of Registered Alien where the following are entered:
"Children if any: give number of children—Four"; and, "Name—All living in China"
[Exhibit "SS-1";]

(2) the testimony of their mother Yao Kee who stated that she had five children with
Sy Kiat, only three of whom are alive namely, Sze Sook Wah, Sze Lai Chu and Sze
Chin Yan [TSN, December 12, 1977, pp. 9-11;] and,

(3) an affidavit executed on March 22,1961 by Sy Kiat for presentation to the Local
Civil Registrar of Manila to support Sze Sook Wah's application for a marriage
license, wherein Sy Kiat expressly stated that she is his daughter [Exhibit "3".]

Likewise on the record is the testimony of Asuncion Gillego that Sy Kiat told her he has three
daughters with his Chinese wife, two of whom—Sook Wah and Sze Kai Cho—she knows, and one
adopted son [TSN, December 6,1977, pp. 87-88.]

However, as petitioners failed to establish the marriage of Yao Kee with Sy Mat according to the
laws of China, they cannot be accorded the status of legitimate children but only that of
acknowledged natural children. Petitioners are natural children, it appearing that at the time of their
conception Yao Kee and Sy Kiat were not disqualified by any impediment to marry one another [See
Art. 269, Civil Code.] And they are acknowledged children of the deceased because of Sy Kiat's
recognition of Sze Sook Wah [Exhibit "3"] and its extension to Sze Lai Cho and Sy Chun Yen who
are her sisters of the full blood [See Art. 271, Civil Code.]

Private respondents on the other hand are also the deceased's acknowledged natural children with
Asuncion Gillego, a Filipina with whom he lived for twenty-five (25) years without the benefit of
marriage. They have in their favor their father's acknowledgment, evidenced by a compromise
agreement entered into by and between their parents and approved by the Court of First Instance on
February 12, 1974 wherein Sy Kiat not only acknowleged them as his children by Asuncion Gillego
but likewise made provisions for their support and future inheritance, thus:

xxx xxx xxx

2. The parties also acknowledge that they are common-law husband and wife and
that out of such relationship, which they have likewise decided to definitely and
finally terminate effective immediately, they begot five children, namely: Aida Sy,
born on May 30, 1950; Manuel Sy, born on July 1, 1953; Teresita Sy, born on
January 28, 1955; Ricardo Sy now deceased, born on December 14, 1956; and
Rodolfo Sy, born on May 7, 1958.

3. With respect to the AVENUE TRACTOR AND DIESEL PARTS SUPPLY ... , the
parties mutually agree and covenant that—

(a) The stocks and merchandize and the furniture and equipments ...,
shall be divided into two equal shares between, and distributed to, Sy
Kiat who shall own
one-half of the total and the other half to Asuncion Gillego who shall
transfer the same to their children, namely, Aida Sy, Manuel Sy,
Teresita Sy, and Rodolfo Sy.

(b) the business name and premises ... shall be retained by Sy Kiat.
However, it shall be his obligation to give to the aforenamed children
an amount of One Thousand Pesos ( Pl,000.00 ) monthly out of the
rental of the two doors of the same building now occupied by Everett
Construction.

xxx xxx xxx

(5) With respect to the acquisition, during the existence of the

common-law husband-and-wife relationship between the parties, of the real estates
and properties registered and/or appearing in the name of Asuncion Gillego ... , the
parties mutually agree and covenant that the said real estates and properties shall
be transferred in equal shares to their children, namely, Aida Sy, Manuel Sy,
Teresita Sy, and Rodolfo Sy, but to be administered by Asuncion Gillego during her
lifetime ... [Exhibit "D".] (Emphasis supplied.)

xxx xxx xxx

This compromise agreement constitutes a statement before a court of record by which a child may
be voluntarily acknowledged [See Art. 278, Civil Code.]
Petitioners further argue that the questions on the validity of Sy Mat's marriage to Yao Kee and the
paternity and filiation of the parties should have been ventilated in the Juvenile and Domestic
Relations Court.

Specifically, petitioners rely on the following provision of Republic Act No. 5502, entitled "An Act
Revising Rep. Act No. 3278, otherwise known as the Charter of the City of Caloocan', with regard to
the Juvenile and Domestic Relations Court:

SEC. 91-A. Creation and Jurisdiction of the Court.—

xxx xxx xxx

The provisions of the Judiciary Act to the contrary notwithstanding, the court shall
have exclusive original jurisdiction to hear and decide the following cases:

xxx xxx xxx

(2) Cases involving custody, guardianship, adoption, revocation of adoption, paternity

and acknowledgment;

(3) Annulment of marriages, relief from marital obligations, legal separation of

spouses, and actions for support;

(4) Proceedings brought under the provisions of title six and title seven, chapters one
to three of the civil code;

xxx xxx xxx

and the ruling in the case of Bartolome v. Bartolome [G.R. No. L-23661, 21 SCRA 1324] reiterated in
Divinagracia v. Rovira [G.R. No. L-42615, 72 SCRA 307.]

With the enactment of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization
Act of 1980, the Juvenile and Domestic Relations Courts were abolished. Their functions and
jurisdiction are now vested with the Regional Trial Courts [See Section 19 (7), B.P. Blg. 129 and
Divinagracia v. Belosillo, G.R. No. L-47407, August 12, 1986, 143 SCRA 356, 360] hence it is no
longer necessary to pass upon the issue of jurisdiction raised by petitioners.

Moreover, even without the exactment of Batas Pambansa Blg. 129 we find in Rep. Act No. 5502
sec. 91-A last paragraph that:

xxx xxx xxx

If any question involving any of the above matters should arise as an incident in any
case pending in the ordinary court, said incident shall be determined in the main
case.

xxx xxx xxx

As held in the case of Divinagracia v. Rovira [G.R. No. L42615. August 10, 1976, 72 SCRA 307]:
 xxx xxx xxx

It is true that under the aforequoted section 1 of Republic Act No. 4834 **** a case
involving paternity and acknowledgment may be ventilated as an incident in the intestate
or testate proceeding (See Baluyot vs. Ines Luciano, L-42215, July 13, 1976). But that
legal provision presupposes that such an administration proceeding is pending or existing
and has not been terminated. [at pp. 313-314.] (Emphasis supplied.)

xxx xxx xxx

The reason for ths rule is not only "to obviate the rendition of conflicting rulings on the same issue by
the Court of First Instance and the Juvenile and Domestic Relations Court" [Vda. de Baluyut v.
Luciano, G.R. No. L-42215, July 13, 1976, 72 SCRA 52, 63] but more importantly to prevent
multiplicity of suits. Accordingly, this Court finds no reversible error committed by respondent court.

WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Footnotes

* The petition for review in G.R. No. 56045 was denied for lack of merit on March 9,
1981, Counsel for the petitioners then filed a Motion for Consolidation and for
Extension of Time to File Motion for Reconsideration which was granted on July 8,
1981. On February 17, 1982, however, petitioners' motion for reconsideration of the
resolution of March 9, 1981 was denied.

** Other than the exceptions contained in this article, this provision of law is derived
from Section 19, Act No. 3613 and Section IV, General Order No. 68.

*** The presumption that, in the absence of proof, the foreign law is the same as the
law of the forum, is known as processual presumption which has been applied by this
Court in the cases of Lim v. The Insular Collector of Customs, 36 Phil, 472 (1917);
International Harvester Co. in Russia v. Hamburg-American Line, 42 Phil. 845
(1918); Miciano v. Brimo, 60 Phil, 867 (1924); and Rayray v. Chae Kyung Lee, G.R.
No. L-18176, October 26, 1966,18 SCRA 450.

**** Rep. Act 4834 created the Juvenile and Domestic Relations Court of Iloilo.
Section 1 of said Act is the exact copy of section 19-A of Rep. Act 5502.
G.R. No. 162155 August 28, 2007

COMMISSIONER OF INTERNAL REVENUE and ARTURO V. PARCERO in his official capacity

as Revenue District Officer of Revenue District No. 049 (Makati), Petitioners,
vs.
PRIMETOWN PROPERTY GROUP, INC., Respondent.

DECISION

CORONA, J.:

This petition for review on certiorari1 seeks to set aside the August 1, 2003 decision2 of the Court of
Appeals (CA) in CA-G.R. SP No. 64782 and its February 9, 2004 resolution denying
reconsideration.3

On March 11, 1999, Gilbert Yap, vice chair of respondent Primetown Property Group, Inc., applied
for the refund or credit of income tax respondent paid in 1997. In Yap's letter to petitioner revenue
district officer Arturo V. Parcero of Revenue District No. 049 (Makati) of the Bureau of Internal
Revenue (BIR),4 he explained that the increase in the cost of labor and materials and difficulty in
obtaining financing for projects and collecting receivables caused the real estate industry to
slowdown.5 As a consequence, while business was good during the first quarter of 1997, respondent
suffered losses amounting to ₱71,879,228 that year.6

According to Yap, because respondent suffered losses, it was not liable for income
taxes.7 Nevertheless, respondent paid its quarterly corporate income tax and remitted creditable
withholding tax from real estate sales to the BIR in the total amount of ₱26,318,398.32. 8 Therefore,
respondent was entitled to tax refund or tax credit.9

On May 13, 1999, revenue officer Elizabeth Y. Santos required respondent to submit additional
documents to support its claim.10 Respondent complied but its claim was not acted upon. Thus, on
April 14, 2000, it filed a petition for review11 in the Court of Tax Appeals (CTA).
On December 15, 2000, the CTA dismissed the petition as it was filed beyond the two-year
prescriptive period for filing a judicial claim for tax refund or tax credit.12 It invoked Section 229 of the
National Internal Revenue Code (NIRC):

Sec. 229. Recovery of Taxes Erroneously or Illegally Collected. -- No suit or proceeding shall be
maintained in any court for the recovery of any national internal revenue tax hereafter alleged to
have been erroneously or illegally assessed or collected, or of any penalty claimed to have been
collected without authority, or of any sum alleged to have been excessively or in any manner
wrongfully collected, until a claim for refund or credit has been duly filed with the Commissioner; but
such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid
under protest or duress.

In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from
the date of payment of the tax or penalty regardless of any supervening cause that may arise
after payment: Provided, however, That the Commissioner may, even without a claim therefor,
refund or credit any tax, where on the face of the return upon which payment was made, such
payment appears clearly to have been erroneously paid. (emphasis supplied)

The CTA found that respondent filed its final adjusted return on April 14, 1998. Thus, its right to
claim a refund or credit commenced on that date.13

The tax court applied Article 13 of the Civil Code which states:

Art. 13. When the law speaks of years, months, days or nights, it shall be understood that years are
of three hundred sixty-five days each; months, of thirty days; days, of twenty-four hours, and
nights from sunset to sunrise.

If the months are designated by their name, they shall be computed by the number of days which
they respectively have.

In computing a period, the first day shall be excluded, and the last included. (emphasis supplied)

Thus, according to the CTA, the two-year prescriptive period under Section 229 of the NIRC for the
filing of judicial claims was equivalent to 730 days. Because the year 2000 was a leap year,
respondent's petition, which was filed 731 days14 after respondent filed its final adjusted return, was
filed beyond the reglementary period.15

Respondent moved for reconsideration but it was denied.16 Hence, it filed an appeal in the CA.17

On August 1, 2003, the CA reversed and set aside the decision of the CTA. 18 It ruled that Article 13
of the Civil Code did not distinguish between a regular year and a leap year. According to the CA:

The rule that a year has 365 days applies, notwithstanding the fact that a particular year is a leap
year.19

In other words, even if the year 2000 was a leap year, the periods covered by April 15, 1998 to April
14, 1999 and April 15, 1999 to April 14, 2000 should still be counted as 365 days each or a total of
730 days. A statute which is clear and explicit shall be neither interpreted nor construed. 20

Petitioners moved for reconsideration but it was denied.21 Thus, this appeal.
Petitioners contend that tax refunds, being in the nature of an exemption, should be strictly
construed against claimants.22 Section 229 of the NIRC should be strictly applied against respondent
inasmuch as it has been consistently held that the prescriptive period (for the filing of tax refunds
and tax credits) begins to run on the day claimants file their final adjusted returns. 23 Hence, the claim
should have been filed on or before April 13, 2000 or within 730 days, reckoned from the time
respondent filed its final adjusted return.

The conclusion of the CA that respondent filed its petition for review in the CTA within the two-year
prescriptive period provided in Section 229 of the NIRC is correct. Its basis, however, is not.

The rule is that the two-year prescriptive period is reckoned from the filing of the final adjusted
return.24 But how should the two-year prescriptive period be computed?

As already quoted, Article 13 of the Civil Code provides that when the law speaks of a year, it is
understood to be equivalent to 365 days. In National Marketing Corporation v. Tecson,25 we ruled
that a year is equivalent to 365 days regardless of whether it is a regular year or a leap year. 26

However, in 1987, EO27 292 or the Administrative Code of 1987 was enacted. Section 31, Chapter
VIII, Book I thereof provides:

Sec. 31. Legal Periods. — "Year" shall be understood to be twelve calendar months; "month" of
thirty days, unless it refers to a specific calendar month in which case it shall be computed according
to the number of days the specific month contains; "day", to a day of twenty-four hours and; "night"
from sunrise to sunset. (emphasis supplied)

A calendar month is "a month designated in the calendar without regard to the number of days it
may contain."28 It is the "period of time running from the beginning of a certain numbered day up to,
but not including, the corresponding numbered day of the next month, and if there is not a sufficient
number of days in the next month, then up to and including the last day of that month." 29 To illustrate,
one calendar month from December 31, 2007 will be from January 1, 2008 to January 31, 2008; one
calendar month from January 31, 2008 will be from February 1, 2008 until February 29, 2008. 30

A law may be repealed expressly (by a categorical declaration that the law is revoked and abrogated
by another) or impliedly (when the provisions of a more recent law cannot be reasonably reconciled
with the previous one).31 Section 27, Book VII (Final Provisions) of the Administrative Code of 1987
states:

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

A repealing clause like Sec. 27 above is not an express repealing clause because it fails to identify
or designate the laws to be abolished.32 Thus, the provision above only impliedly repealed all laws
inconsistent with the Administrative Code of 1987. 1avvphi1

Implied repeals, however, are not favored. An implied repeal must have been clearly and
unmistakably intended by the legislature. The test is whether the subsequent law encompasses
entirely the subject matter of the former law and they cannot be logically or reasonably reconciled. 33

Both Article 13 of the Civil Code and Section 31, Chapter VIII, Book I of the Administrative Code of
1987 deal with the same subject matter — the computation of legal periods. Under the Civil Code, a
year is equivalent to 365 days whether it be a regular year or a leap year. Under the Administrative
Code of 1987, however, a year is composed of 12 calendar months. Needless to state, under the
Administrative Code of 1987, the number of days is irrelevant.

There obviously exists a manifest incompatibility in the manner of computing legal periods under the
Civil Code and the Administrative Code of 1987. For this reason, we hold that Section 31, Chapter
VIII, Book I of the Administrative Code of 1987, being the more recent law, governs the computation
of legal periods. Lex posteriori derogat priori.

Applying Section 31, Chapter VIII, Book I of the Administrative Code of 1987 to this case, the two-
year prescriptive period (reckoned from the time respondent filed its final adjusted return 34 on April
14, 1998) consisted of 24 calendar months, computed as follows:

Year 1 1st calendar April 15, 1998 to May 14, 1998

month
2nd calendar May 15, 1998 to June 14, 1998
month
3rd calendar June 15, 1998 to July 14, 1998
month
4th calendar July 15, 1998 to August 14, 1998
month
5th calendar August 15, 1998 to September 14,
month 1998
6th calendar September 15, to October 14, 1998
month 1998
7th calendar October 15, 1998 to November 14, 1998
month
8th calendar November 15, 1998 to December 14, 1998
month
9th calendar December 15, 1998 to January 14, 1999
month
10th calendar January 15, 1999 to February 14, 1999
month
11th calendar February 15, 1999 to March 14, 1999
month
12th calendar March 15, 1999 to April 14, 1999
month
Year 2 13th calendar April 15, 1999 to May 14, 1999
month
14th calendar May 15, 1999 to June 14, 1999
month
15th calendar June 15, 1999 to July 14, 1999
month
16th calendar July 15, 1999 to August 14, 1999
 month
17th calendar August 15, 1999 to September 14,
month 1999
18th calendar September 15, to October 14, 1999
month 1999
19th calendar October 15, 1999 to November 14, 1999
month
20th calendar November 15, 1999 to December 14, 1999
month
21st calendar December 15, 1999 to January 14, 2000
month
22nd calendar January 15, 2000 to February 14, 2000
month
23rd calendar February 15, 2000 to March 14, 2000
month
24th calendar March 15, 2000 to April 14, 2000
month

We therefore hold that respondent's petition (filed on April 14, 2000) was filed on the last day of the
24th calendar month from the day respondent filed its final adjusted return. Hence, it was filed within
the reglementary period.

Accordingly, the petition is hereby DENIED. The case is REMANDED to the Court of Tax Appeals
which is ordered to expeditiously proceed to hear C.T.A. Case No. 6113 entitled Primetown Property
Group, Inc. v. Commissioner of Internal Revenue and Arturo V. Parcero.

No costs.

SO ORDERED.

RENATO C. CORONA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice
Chairperson

ANGELINA SANDOVAL-GUTIERREZ ADOLFO S. AZCUNA

Associate Justice Associate Justice

CANCIO C. GARCIA
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.

REYNATO S. PUNO
Chief Justice

Footnotes

1
Under Rule 45 of the Rules of Court.

2
Penned by Associate Justice Marina L. Buzon and concurred in by Associate Justices
Rebecca de Guia-Salvador and Jose C. Mendoza of the Special Fifteenth Division of the
Court of Appeals. Rollo, pp. 21-25.

3
Penned by Associate Justice Marina L. Buzon and concurred in by Associate Justices
Rebecca de Guia-Salvador and Jose C. Mendoza of the Former Special Fifteenth Division of
the Court of Appeals. Id., pp. 26-28.

4
Id., pp. 37-42.

5
Id., pp. 39-40.

6
Id. This was the period of economic slowdown known as the "Asian (Financial) Crisis"
which started in mid-1997.

7
Id., p. 41.

8
Summary of Tax/Payments for 1997:

Creditable
Corporate
Quarter Withholding TOTAL
Income Tax
Tax
1st ₱ 3,440,082.00 ₱ 687,783.00 ₱ 4,127,865.00
2nd 15,694,502.00 633,175.00 16,327,677.00
3rd 2,419,868.81 3,154,506.51 5,574,375.32
4th 288,481.00 288,481.00
<="" td="" style="font-
size: 14px; text-
decoration: none; ₱ ₱
₱ 26,318,398.32
color: rgb(0, 0, 128); 21,554,452.81 4,763,945.51
font-family: arial,
verdana;">
 Id., p. 40.

9
Id., p. 41.

10
Id., pp. 78-79.

11
Docketed as C.T.A. Case No. 6113. Id., pp. 192-199.

Penned by Presiding Judge Ernesto D. Acosta and concurred in by Associate Judges

12

Amancio Q. Saga (retired) and Ramon O. de Veyra (retired). Dated December 15, 2000. Id.,
pp. 187-190.

13
CIR v. CA, 361 Phil. 359, 364-365 (1999).

14
The computation was as follows:

April 15, 1998 to April 14, 1999 ----------------------- 365 days

April 15, 1999 to April 14, 2000 (leap year) ---------- 366 days

TOTAL 731 days

15
Rollo, p. 190.

16
Id., p. 191.

17
Docketed as CA-G.R. SP No. 64782. Id., pp. 180-186. (This case observes the procedure
in RA 1125 prior to the amendments of RA 9282.)

18
Id., pp. 21-25. Under RA 9282 which took effect on April 22, 2004, decisions of the CTA
are now appealable to the Supreme Court.

19
Id., p. 24.

20
Id.

21
Id., pp. 26-28.

22
Id., p. 13.

23
Id., p. 15.

24
Tax Code, Sec. 229 and supra note 12 at 367. See also ACCRA Investments Corporation
v. CA., G.R. No. 96322, 20 December 1991, 204 SCRA 957. See also CIR v. Philippine
American Life Insurance Co., G.R. No. 105208, 29 May 1995, 244 SCRA 446.

25
139 Phil. 584 (1969).

26
Id., pp. 588-589 citing People v. del Rosario, 97 Phil 70, 71 (1955).
27
Executive Order

28
Gutierrez v. Carpio, 53 Phil. 334, 335-336 (1929).

29
Section 9, Time, 74 AmJur 2d 593 citing Re Lynch's Estate, 123 Utah 57, 254 P2d 454.

This is pursuant to Article 13(3) of the Civil Code which provides that "[i]n computing a
30

period, the first day shall be excluded, and the last day included."

Cf. Rules of Court, Rule 22, Sec. 1. The section provides:

Section 1. How to compute time. In computing any period of time prescribed or

allowed by this Rules, or by the order of the court, or by any applicable statute, the
day of the act or event from which the designated period of time begins to run
is to be excluded and the date of performance included. If the last day of the
period, as thus computed, falls on a Saturday, a Sunday or a legal holiday in the
place where the court sits, the time shall not run until the next working day.
(emphasis supplied)

Jose Jesus G. Laurel, Statutory Construction: Cases and Materials, 1999 ed.,
31

176 citing Black's Law Dictionary, 4th ed., 1463.

32
Agujetas v. Court of Appeals, G.R. No. 106560, 23 August 1996, 261 SCRA 17, 32.

33
David v. Commission on Election, G.R. No. 127116, 08 April 1997, 271 SCRA 90, 103.

34
Supra note 25.
 FIRST DIVISION

G.R. No. L-68470 October 8, 1985

ALICE REYES VAN DORN, petitioner,

vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of
the National Capital Region Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\

In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the Orders, dated September 15, 1983 and
August 3, 1984, in Civil Case No. 1075-P, issued by respondent Judge, which denied her Motion to Dismiss said case, and her Motion for
Reconsideration of the Dismissal Order, respectively.

The basic background facts are that petitioner is a citizen of the Philippines while private respondent
is a citizen of the United States; that they were married in Hongkong in 1972; that, after the
marriage, they established their residence in the Philippines; that they begot two children born on
April 4, 1973 and December 18, 1975, respectively; that the parties were divorced in Nevada, United
States, in 1982; and that petitioner has re-married also in Nevada, this time to Theodore Van Dorn.

Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the
Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila,
(the Galleon Shop, for short), is conjugal property of the parties, and asking that petitioner be
ordered to render an accounting of that business, and that private respondent be declared with right
to manage the conjugal property. Petitioner moved to dismiss the case on the ground that the cause
of action is barred by previous judgment in the divorce proceedings before the Nevada Court
wherein respondent had acknowledged that he and petitioner had "no community property" as of
June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case on the ground
that the property involved is located in the Philippines so that the Divorce Decree has no bearing in
the case. The denial is now the subject of this certiorari proceeding.

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to
appeal. certiorari and Prohibition are neither the remedies to question the propriety of an
interlocutory order of the trial Court. However, when a grave abuse of discretion was patently
committed, or the lower Court acted capriciously and whimsically, then it devolves upon this Court in
a certiorari proceeding to exercise its supervisory authority and to correct the error committed which,
in such a case, is equivalent to lack of jurisdiction. Prohibition would then lie since it would be
1
useless and a waste of time to go ahead with the proceedings. Weconsider the petition filed in this
2

case within the exception, and we have given it due course.

For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in
the Philippines.

Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property
because of the representation he made in the divorce proceedings before the American Court that
they had no community of property; that the Galleon Shop was not established through conjugal
funds, and that respondent's claim is barred by prior judgment.

For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail
over the prohibitive laws of the Philippines and its declared national policy; that the acts and
declaration of a foreign Court cannot, especially if the same is contrary to public policy, divest
Philippine Courts of jurisdiction to entertain matters within its jurisdiction.

For the resolution of this case, it is not necessary to determine whether the property relations
between petitioner and private respondent, after their marriage, were upon absolute or relative
community property, upon complete separation of property, or upon any other regime. The pivotal
fact in this case is the Nevada divorce of the parties.

The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who
appeared in person before the Court during the trial of the case. It also obtained jurisdiction over
private respondent who, giving his address as No. 381 Bush Street, San Francisco, California,
authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground
of incompatibility in the understanding that there were neither community property nor community
obligations. As explicitly stated in the Power of Attorney he executed in favor of the law firm of
3

KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce proceedings:

xxx xxx xxx

You are hereby authorized to accept service of Summons, to file an Answer, appear
on my behalf and do an things necessary and proper to represent me, without further
contesting, subject to the following:

1. That my spouse seeks a divorce on the ground of incompatibility.

2. That there is no community of property to be adjudicated by the Court.

3. 'I'hat there are no community obligations to be adjudicated by the court.

xxx xxx xxx 4

There can be no question as to the validity of that Nevada divorce in any of the States of the United
States. The decree is binding on private respondent as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending
in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to
local law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only
5

Philippine nationals are covered by the policy against absolute divorces the same being considered
contrary to our concept of public police and morality. However, aliens may obtain divorces abroad,
which may be recognized in the Philippines, provided they are valid according to their national
law. In this case, the divorce in Nevada released private respondent from the marriage from the
6

standards of American law, under which divorce dissolves the marriage. As stated by the Federal
Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

The purpose and effect of a decree of divorce from the bond of matrimony by a court
of competent jurisdiction are to change the existing status or domestic relation of
husband and wife, and to free them both from the bond. The marriage tie when thus
severed as to one party, ceases to bind either. A husband without a wife, or a wife
without a husband, is unknown to the law. When the law provides, in the nature of a
penalty. that the guilty party shall not marry again, that party, as well as the other, is
still absolutely freed from the bond of the former marriage.

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner's husband entitled to exercise control
over conjugal assets. As he is bound by the Decision of his own country's Court, which validly
exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his
own representation before said Court from asserting his right over the alleged conjugal property.

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still
married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the
Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter should not continue to be one of her
heirs with possible rights to conjugal property. She should not be discriminated against in her own
country if the ends of justice are to be served.

WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the
Complaint filed in Civil Case No. 1075-P of his Court.

Without costs.

SO ORDERED.

Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.

Footnotes

1 Sanchez vs. Zosa, 68 SCRA 171 (1975); Malit vs. People, 114 SCRA 348 (1982).

2 U.S.T. vs. Hon. Villanueva, et al., 106 Phil. 439 (1959).

3 Annex "Y", Petition for Certiorari.

4 p. 98, Rollo.

5 "Art. 15. Laws relating to family rights and duties or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines, even though
living abroad.
 6 cf. Recto vs. Harden, 100 Phil. 427 [1956]; Paras, Civil Code, 1971 ed., Vol. I, p.
52; Salonga, Private International Law, 1979 ed., p. 231."

SECOND DIVISION

G.R. No. 80116 June 30, 1989

IMELDA MANALAYSAY PILAPIL, petitioner,

vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court
of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila;
and ERICH EKKEHARD GEILING, respondents.

REGALADO, J.:

An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to
be followed by a criminal infidelity suit of the latter against the former, provides Us the opportunity to
lay down a decisional rule on what hitherto appears to be an unresolved jurisdictional question.

On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private
respondent Erich Ekkehard Geiling, a German national, were married before the Registrar of Births,
Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The marriage started
auspiciously enough, and the couple lived together for some time in Malate, Manila where their only
child, Isabella Pilapil Geiling, was born on April 20, 1980.1

Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a
separation de facto between them.

After about three and a half years of marriage, such connubial disharmony eventuated in private
respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg
Local Court in January, 1983. He claimed that there was failure of their marriage and that they had
been living apart since April, 1982. 2

Petitioner, on the other hand, filed an action for legal separation, support and separation of property
before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still
pending as Civil Case No. 83-15866. 3

On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany,
promulgated a decree of divorce on the ground of failure of marriage of the spouses. The custody of
the child was granted to petitioner. The records show that under German law said court was locally
and internationally competent for the divorce proceeding and that the dissolution of said marriage
was legally founded on and authorized by the applicable law of that foreign jurisdiction. 4

On June 27, 1986, or more than five months after the issuance of the divorce decree, private
respondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while still
married to said respondent, petitioner "had an affair with a certain William Chia as early as 1982 and
with yet another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto A. de los
Reyes, Jr., after the corresponding investigation, recommended the dismissal of the cases on the
ground of insufficiency of evidence. However, upon review, the respondent city fiscal approved a
5

resolution, dated January 8, 1986, directing the filing of two complaints for adultery against the
petitioner. The complaints were accordingly filed and were eventually raffled to two branches of the
6

Regional Trial Court of Manila. The case entitled "People of the Philippines vs. Imelda Pilapil and
William Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI presided by
the respondent judge; while the other case, "People of the Philippines vs. Imelda Pilapil and James
Chua", docketed as Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch
XXV, of the same court. 7

On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid
resolution of respondent fiscal be set aside and the cases against her be dismissed. A similar
8

petition was filed by James Chua, her co-accused in Criminal Case No. 87-52434. The Secretary of
Justice, through the Chief State Prosecutor, gave due course to both petitions and directed the
respondent city fiscal to inform the Department of Justice "if the accused have already been
arraigned and if not yet arraigned, to move to defer further proceedings" and to elevate the entire
records of both cases to his office for review.9

Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend
further proceedings thereon. As a consequence, Judge Leonardo Cruz suspended proceedings in
10

Criminal Case No. 87-52434. On the other hand, respondent judge merely reset the date of the
arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such scheduled date, petitioner
moved for the cancellation of the arraignment and for the suspension of proceedings in said Criminal
Case No. 87-52435 until after the resolution of the petition for review then pending before the
Secretary of Justice. A motion to quash was also filed in the same case on the ground of lack of
11

jurisdiction, which motion was denied by the respondent judge in an order dated September 8,
12

1987. The same order also directed the arraignment of both accused therein, that is, petitioner and
William Chia. The latter entered a plea of not guilty while the petitioner refused to be arraigned. Such
refusal of the petitioner being considered by respondent judge as direct contempt, she and her
counsel were fined and the former was ordered detained until she submitted herself for
arraignment. Later, private respondent entered a plea of not guilty.
13 14

On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a
prayer for a temporary restraining order, seeking the annulment of the order of the lower court
denying her motion to quash. The petition is anchored on the main ground that the court is without
jurisdiction "to try and decide the charge of adultery, which is a private offense that cannot be
prosecuted de officio (sic), since the purported complainant, a foreigner, does not qualify as an
offended spouse having obtained a final divorce decree under his national law prior to his filing the
criminal complaint." 15

On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from
implementing the aforesaid order of September 8, 1987 and from further proceeding with Criminal
Case No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoñez
acted on the aforesaid petitions for review and, upholding petitioner's ratiocinations, issued a
resolution directing the respondent city fiscal to move for the dismissal of the complaints against the
petitioner.16

We find this petition meritorious. The writs prayed for shall accordingly issue.

Under Article 344 of the Revised Penal Code, the crime of adultery, as well as four other crimes
17

against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended
spouse. It has long since been established, with unwavering consistency, that compliance with this
rule is a jurisdictional, and not merely a formal, requirement. While in point of strict law the
18

jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for a
sworn written complaint is just as jurisdictional a mandate since it is that complaint which starts the
prosecutory proceeding and without which the court cannot exercise its jurisdiction to try the case.
19

Now, the law specifically provides that in prosecutions for adultery and concubinage the person who
can legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of
seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of
the crimes of adultery and concubinage by the parents, grandparents or guardian of the offended
party. The so-called exclusive and successive rule in the prosecution of the first four offenses above
mentioned do not apply to adultery and concubinage. It is significant that while the State, as parens
patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate
the criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction,
abduction, rape and acts of lasciviousness, in default of her parents, grandparents or guardian, such
amendment did not include the crimes of adultery and concubinage. In other words, only the
offended spouse, and no other, is authorized by law to initiate the action therefor.

Corollary to such exclusive grant of power to the offended spouse to institute the action, it
necessarily follows that such initiator must have the status, capacity or legal representation to do so
at the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in
fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as
of the filing of the complaint or petition.

The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that
the same requirement and rationale would not apply. Understandably, it may not have been found
necessary since criminal actions are generally and fundamentally commenced by the State, through
the People of the Philippines, the offended party being merely the complaining witness therein.
However, in the so-called "private crimes" or those which cannot be prosecuted de oficio, and the
present prosecution for adultery is of such genre, the offended spouse assumes a more predominant
role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his
power and option.

This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the
outrage in silence rather than go through the scandal of a public trial. Hence, as cogently argued
20

by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is
still subsisting at the time of the institution of the criminal action for, adultery. This is a logical
consequence since the raison d'etre of said provision of law would be absent where the supposed
offended party had ceased to be the spouse of the alleged offender at the time of the filing of the
criminal case. 21

In these cases, therefore, it is indispensable that the status and capacity of the complainant to
commence the action be definitely established and, as already demonstrated, such status or
capacity must indubitably exist as of the time he initiates the action. It would be absurd if his capacity
to bring the action would be determined by his status before or subsequent to the commencement
thereof, where such capacity or status existed prior to but ceased before, or was acquired
subsequent to but did not exist at the time of, the institution of the case. We would thereby have the
anomalous spectacle of a party bringing suit at the very time when he is without the legal capacity to
do so.

To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as
to when precisely the status of a complainant as an offended spouse must exist where a criminal
prosecution can be commenced only by one who in law can be categorized as possessed of such
status. Stated differently and with reference to the present case, the inquiry ;would be whether it is
necessary in the commencement of a criminal action for adultery that the marital bonds between the
complainant and the accused be unsevered and existing at the time of the institution of the action by
the former against the latter.

American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with
ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the
right to institute proceedings against the offenders where the statute provides that the innocent
spouse shall have the exclusive right to institute a prosecution for adultery. Where, however,
proceedings have been properly commenced, a divorce subsequently granted can have no legal
effect on the prosecution of the criminal proceedings to a conclusion. 22

In the cited Loftus case, the Supreme Court of Iowa held that —

'No prosecution for adultery can be commenced except on the complaint of the
husband or wife.' Section 4932, Code. Though Loftus was husband of defendant
when the offense is said to have been committed, he had ceased to be such when
the prosecution was begun; and appellant insists that his status was not such as to
entitle him to make the complaint. We have repeatedly said that the offense is
against the unoffending spouse, as well as the state, in explaining the reason for this
provision in the statute; and we are of the opinion that the unoffending spouse must
be such when the prosecution is commenced. (Emphasis supplied.)

We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction,
considering our statutory law and jural policy on the matter. We are convinced that in cases of such
nature, the status of the complainant vis-a-vis the accused must be determined as of the time the
complaint was filed. Thus, the person who initiates the adultery case must be an offended spouse,
and by this is meant that he is still married to the accused spouse, at the time of the filing of the
complaint.

In the present case, the fact that private respondent obtained a valid divorce in his country, the
Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in
the Philippines insofar as private respondent is concerned in view of the nationality principle in our
23

civil law on the matter of status of persons.

Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., after a divorce was granted by a United
24

States court between Alice Van Dornja Filipina, and her American husband, the latter filed a civil
case in a trial court here alleging that her business concern was conjugal property and praying that
she be ordered to render an accounting and that the plaintiff be granted the right to manage the
business. Rejecting his pretensions, this Court perspicuously demonstrated the error of such stance,
thus:

There can be no question as to the validity of that Nevada divorce in any of the
States of the United States. The decree is binding on private respondent as an
 American citizen. For instance, private respondent cannot sue petitioner, as her
husband, in any State of the Union. ...

It is true that owing to the nationality principle embodied in Article 15 of the Civil
Code, only Philippine nationals are covered by the policy against absolute divorces
the same being considered contrary to our concept of public policy and morality.
However, aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national law. ...

Thus, pursuant to his national law, private respondent is no longer the husband of
petitioner. He would have no standing to sue in the case below as petitioner's
husband entitled to exercise control over conjugal assets. ... 25

Under the same considerations and rationale, private respondent, being no longer the husband of
petitioner, had no legal standing to commence the adultery case under the imposture that he was
the offended spouse at the time he filed suit.

The allegation of private respondent that he could not have brought this case before the decree of
divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case.
When said respondent initiated the divorce proceeding, he obviously knew that there would no
longer be a family nor marriage vows to protect once a dissolution of the marriage is decreed.
Neither would there be a danger of introducing spurious heirs into the family, which is said to be one
of the reasons for the particular formulation of our law on adultery, since there would thenceforth
26

be no spousal relationship to speak of. The severance of the marital bond had the effect of
dissociating the former spouses from each other, hence the actuations of one would not affect or
cast obloquy on the other.

The aforecited case of United States vs. Mata cannot be successfully relied upon by private
respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333 of
the Revised Penal Code, which punished adultery "although the marriage be afterwards declared
void", the Court merely stated that "the lawmakers intended to declare adulterous the infidelity of a
married woman to her marital vows, even though it should be made to appear that she is entitled to
have her marriage contract declared null and void, until and unless she actually secures a formal
judicial declaration to that effect". Definitely, it cannot be logically inferred therefrom that the
complaint can still be filed after the declaration of nullity because such declaration that the marriage
is void ab initio is equivalent to stating that it never existed. There being no marriage from the
beginning, any complaint for adultery filed after said declaration of nullity would no longer have a leg
to stand on. Moreover, what was consequently contemplated and within the purview of the decision
in said case is the situation where the criminal action for adultery was filed before the termination of
the marriage by a judicial declaration of its nullity ab initio. The same rule and requisite would
necessarily apply where the termination of the marriage was effected, as in this case, by a valid
foreign divorce.

Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, must suffer
27

the same fate of inapplicability. A cursory reading of said case reveals that the offended spouse
therein had duly and seasonably filed a complaint for adultery, although an issue was raised as to its
sufficiency but which was resolved in favor of the complainant. Said case did not involve a factual
situation akin to the one at bar or any issue determinative of the controversy herein.

WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and
another one entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of
jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is hereby made
permanent.

SO ORDERED.

Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

Separate Opinions

PARAS, J., concurring:

It is my considered opinion that regardless of whether We consider the German absolute divorce as
valid also in the Philippines, the fact is that the husband in the instant case, by the very act of his
obtaining an absolute divorce in Germany can no longer be considered as the offended party in case
his former wife actually has carnal knowledge with another, because in divorcing her, he already
implicitly authorized the woman to have sexual relations with others. A contrary ruling would be less
than fair for a man, who is free to have sex will be allowed to deprive the woman of the same
privilege.

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute
divorce between the American husband and his American wife as valid and binding in the
Philippines on the theory that their status and capacity are governed by their National law, namely,
American law. There is no decision yet of the Supreme Court regarding the validity of such a divorce
if one of the parties, say an American, is married to a Filipino wife, for then two (2) different
nationalities would be involved.

In the book of Senate President Jovito Salonga entitled Private International Law and precisely
because of the National law doctrine, he considers the absolute divorce as valid insofar as the
American husband is concerned but void insofar as the Filipino wife is involved. This results in what
he calls a "socially grotesque situation," where a Filipino woman is still married to a man who is no
longer her husband. It is the opinion however, of the undersigned that very likely the opposite
expresses the correct view. While under the national law of the husband the absolute divorce will be
valid, still one of the exceptions to the application of the proper foreign law (one of the exceptions to
comity) is when the foreign law will work an injustice or injury to the people or residents of the forum.
Consequently since to recognize the absolute divorce as valid on the part of the husband would be
injurious or prejudicial to the Filipino wife whose marriage would be still valid under her national law,
it would seem that under our law existing before the new Family Code (which took effect on August
3, 1988) the divorce should be considered void both with respect to the American husband and the
Filipino wife.

The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the
husband was an American can with a Filipino wife because in said case the validity of the divorce
insofar as the Filipino wife is concerned was NEVER put in issue.
Separate Opinions

PARAS, J., concurring:

It is my considered opinion that regardless of whether We consider the German absolute divorce as
valid also in the Philippines, the fact is that the husband in the instant case, by the very act of his
obtaining an absolute divorce in Germany can no longer be considered as the offended party in case
his former wife actually has carnal knowledge with another, because in divorcing her, he already
implicitly authorized the woman to have sexual relations with others. A contrary ruling would be less
than fair for a man, who is free to have sex will be allowed to deprive the woman of the same
privilege.

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute
divorce between the American husband and his American wife as valid and binding in the
Philippines on the theory that their status and capacity are governed by their National law, namely,
American law. There is no decision yet of the Supreme Court regarding the validity of such a divorce
if one of the parties, say an American, is married to a Filipino wife, for then two (2) different
nationalities would be involved.

In the book of Senate President Jovito Salonga entitled Private International Law and precisely
because of the National law doctrine, he considers the absolute divorce as valid insofar as the
American husband is concerned but void insofar as the Filipino wife is involved. This results in what
he calls a "socially grotesque situation," where a Filipino woman is still married to a man who is no
longer her husband. It is the opinion however, of the undersigned that very likely the opposite
expresses the correct view. While under the national law of the husband the absolute divorce will be
valid, still one of the exceptions to the application of the proper foreign law (one of the exceptions to
comity) is when the foreign law will work an injustice or injury to the people or residents of the forum.
Consequently since to recognize the absolute divorce as valid on the part of the husband would be
injurious or prejudicial to the Filipino wife whose marriage would be still valid under her national law,
it would seem that under our law existing before the new Family Code (which took effect on August
3, 1988) the divorce should be considered void both with respect to the American husband and the
Filipino wife.

The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the
husband was an American can with a Filipino wife because in said case the validity of the divorce
insofar as the Filipino wife is concerned was NEVER put in issue.

Footnotes

1 Rollo, 5, 29.

2 Ibid., 6, 29.

3 Ibid., 7.

4 Ibid., 7, 29-30; Annexes A and A-1, Petition.

5 Ibid., 7, 178.

6 Ibid., 8; Annexes B, B-1 and B-2, id.

7 Ibid., 8-9, 178.

8 Ibid., 9, 178; Annex C, id.

9 Ibid., 9-10, 178; Annex D, id.

10 Ibid., 9; Annexes E and E-1, id.

11 Ibid., 10; Annex F, id.

12 Ibid., 9, 179; Annex G, id.

13 Ibid., 10 Annex H, id.

14 Ibid, 105.

15 Ibid., 11.

16 Ibid., 311-313.

17 Cf. Sec. 5, Rule 110, Rules of Court.

18 People vs. Mandia, 60 Phil. 372, 375 (1934); People vs. Zurbano, 37 SCRA 565,
569 (1971); People vs. Lingayen, G.R. No. 64556, June 10, 1988.

19 Valdepeñas vs. People, 16 SCRA 871 (1966); People vs. Babasa, 97 SCRA 672
(1980).

20 Samilin vs. Court of First Instance of Pangasinan, 57 Phil. 298 (1932); Donio-
Teves, et al. vs. Vamenta, et al., 133 SCRA 616 (1984).

21 Rollo, 289.

22 2 Am. Jur. 2d., 973 citing State vs. Loftus, 104 NW 906, 907; Re Smith, 2 Okla.
153, 37 p. 1099; State vs. Russell, 90 Iowa 569, 58 NW 915.

23 Recto vs. Harden, 100 Phil. 427 (1956).

24 139 SCRA 139,140 (1985).

25 The said pronouncements foreshadowed and are adopted in the Family Code of
the Philippines (Executive Order No. 209, as amended by Executive Order No. 227,
effective on August 3, 1988), Article 26 whereof provides that "(w)here marriage
between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall likewise have capacity to re under Philippine law.

26 U.S. vs. Mata, 18 Phil. 490 (1911).

27 Footnote 20, ante.

 THIRD DIVISION

G.R. No. 133743 February 6, 2007

EDGAR SAN LUIS, Petitioner,

vs.
FELICIDAD SAN LUIS, Respondent.

x ---------------------------------------------------- x

G.R. No. 134029 February 6, 2007

RODOLFO SAN LUIS, Petitioner,

vs.
FELICIDAD SAGALONGOS alias FELICIDAD SAN LUIS, Respondent.

DECISION

YNARES-SANTIAGO, J.:

Before us are consolidated petitions for review assailing the February 4, 1998 Decision 1 of the Court
of Appeals in CA-G.R. CV No. 52647, which reversed and set aside the September 12, 1995 2 and
January 31, 1996 3 Resolutions of the Regional Trial Court of Makati City, Branch 134 in SP. Proc.
No. M-3708; and its May 15, 1998 Resolution 4 denying petitioners’ motion for reconsideration.

The instant case involves the settlement of the estate of Felicisimo T. San Luis (Felicisimo), who
was the former governor of the Province of Laguna. During his lifetime, Felicisimo contracted three
marriages. His first marriage was with Virginia Sulit on March 17, 1942 out of which were born six
children, namely: Rodolfo, Mila, Edgar, Linda, Emilita and Manuel. On August 11, 1963, Virginia
predeceased Felicisimo.

Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin, with whom he had a son,
Tobias. However, on October 15, 1971, Merry Lee, an American citizen, filed a Complaint for
Divorce 5 before the Family Court of the First Circuit, State of Hawaii, United States of America
(U.S.A.), which issued a Decree Granting Absolute Divorce and Awarding Child Custody on
December 14, 1973. 6

On June 20, 1974, Felicisimo married respondent Felicidad San Luis, then surnamed Sagalongos,
before Rev. Fr. William Meyer, Minister of the United Presbyterian at Wilshire Boulevard, Los
Angeles, California, U.S.A. 7 He had no children with respondent but lived with her for 18 years from
the time of their marriage up to his death on December 18, 1992.

Thereafter, respondent sought the dissolution of their conjugal partnership assets and the settlement
of Felicisimo’s estate. On December 17, 1993, she filed a petition for letters of
administration 8 before the Regional Trial Court of Makati City, docketed as SP. Proc. No. M-3708
which was raffled to Branch 146 thereof.

Respondent alleged that she is the widow of Felicisimo; that, at the time of his death, the decedent
was residing at 100 San Juanico Street, New Alabang Village, Alabang, Metro Manila; that the
decedent’s surviving heirs are respondent as legal spouse, his six children by his first marriage, and
son by his second marriage; that the decedent left real properties, both conjugal and exclusive,
valued at ₱30,304,178.00 more or less; that the decedent does not have any unpaid debts.
Respondent prayed that the conjugal partnership assets be liquidated and that letters of
administration be issued to her.

On February 4, 1994, petitioner Rodolfo San Luis, one of the children of Felicisimo by his first
marriage, filed a motion to dismiss 9 on the grounds of improper venue and failure to state a cause of
action. Rodolfo claimed that the petition for letters of administration should have been filed in the
Province of Laguna because this was Felicisimo’s place of residence prior to his death. He further
claimed that respondent has no legal personality to file the petition because she was only a mistress
of Felicisimo since the latter, at the time of his death, was still legally married to Merry Lee.

On February 15, 1994, Linda invoked the same grounds and joined her brother Rodolfo in seeking
the dismissal 10 of the petition. On February 28, 1994, the trial court issued an Order 11 denying the
two motions to dismiss.

Unaware of the denial of the motions to dismiss, respondent filed on March 5, 1994 her
opposition 12 thereto. She submitted documentary evidence showing that while Felicisimo exercised
the powers of his public office in Laguna, he regularly went home to their house in New Alabang
Village, Alabang, Metro Manila which they bought sometime in 1982. Further, she presented the
decree of absolute divorce issued by the Family Court of the First Circuit, State of Hawaii to prove
that the marriage of Felicisimo to Merry Lee had already been dissolved. Thus, she claimed that
Felicisimo had the legal capacity to marry her by virtue of paragraph 2, 13 Article 26 of the Family
Code and the doctrine laid down in Van Dorn v. Romillo, Jr. 14

Thereafter, Linda, Rodolfo and herein petitioner Edgar San Luis, separately filed motions for
reconsideration from the Order denying their motions to dismiss. 15 They asserted that paragraph 2,
Article 26 of the Family Code cannot be given retroactive effect to validate respondent’s bigamous
marriage with Felicisimo because this would impair vested rights in derogation of Article 256 16 of the
Family Code.

On April 21, 1994, Mila, another daughter of Felicisimo from his first marriage, filed a motion to
disqualify Acting Presiding Judge Anthony E. Santos from hearing the case.

On October 24, 1994, the trial court issued an Order 17 denying the motions for reconsideration. It
ruled that respondent, as widow of the decedent, possessed the legal standing to file the petition and
that venue was properly laid. Meanwhile, the motion for disqualification was deemed moot and
academic 18 because then Acting Presiding Judge Santos was substituted by Judge Salvador S.
Tensuan pending the resolution of said motion.
Mila filed a motion for inhibition 19 against Judge Tensuan on November 16, 1994. On even date,
Edgar also filed a motion for reconsideration 20 from the Order denying their motion for
reconsideration arguing that it does not state the facts and law on which it was based.

On November 25, 1994, Judge Tensuan issued an Order 21 granting the motion for inhibition. The
case was re-raffled to Branch 134 presided by Judge Paul T. Arcangel.

On April 24, 1995, 22 the trial court required the parties to submit their respective position papers on
the twin issues of venue and legal capacity of respondent to file the petition. On May 5, 1995, Edgar
manifested 23 that he is adopting the arguments and evidence set forth in his previous motion for
reconsideration as his position paper. Respondent and Rodolfo filed their position papers on June
14, 24 and June 20, 25 1995, respectively.

On September 12, 1995, the trial court dismissed the petition for letters of administration. It held that,
at the time of his death, Felicisimo was the duly elected governor and a resident of the Province of
Laguna. Hence, the petition should have been filed in Sta. Cruz, Laguna and not in Makati City. It
also ruled that respondent was without legal capacity to file the petition for letters of administration
because her marriage with Felicisimo was bigamous, thus, void ab initio. It found that the decree of
absolute divorce dissolving Felicisimo’s marriage to Merry Lee was not valid in the Philippines and
did not bind Felicisimo who was a Filipino citizen. It also ruled that paragraph 2, Article 26 of the
Family Code cannot be retroactively applied because it would impair the vested rights of Felicisimo’s
legitimate children.

Respondent moved for reconsideration 26 and for the disqualification 27 of Judge Arcangel but said
motions were denied. 28

Respondent appealed to the Court of Appeals which reversed and set aside the orders of the trial
court in its assailed Decision dated February 4, 1998, the dispositive portion of which states:

WHEREFORE, the Orders dated September 12, 1995 and January 31, 1996 are hereby
REVERSED and SET ASIDE; the Orders dated February 28 and October 24, 1994 are
REINSTATED; and the records of the case is REMANDED to the trial court for further
proceedings. 29

The appellante court ruled that under Section 1, Rule 73 of the Rules of Court, the term "place of
residence" of the decedent, for purposes of fixing the venue of the settlement of his estate, refers to
the personal, actual or physical habitation, or actual residence or place of abode of a person as
distinguished from legal residence or domicile. It noted that although Felicisimo discharged his
functions as governor in Laguna, he actually resided in Alabang, Muntinlupa. Thus, the petition for
letters of administration was properly filed in Makati City.

The Court of Appeals also held that Felicisimo had legal capacity to marry respondent by virtue of
paragraph 2, Article 26 of the Family Code and the rulings in Van Dorn v. Romillo, Jr. 30 and Pilapil v.
Ibay-Somera. 31 It found that the marriage between Felicisimo and Merry Lee was validly dissolved
by virtue of the decree of absolute divorce issued by the Family Court of the First Circuit, State of
Hawaii. As a result, under paragraph 2, Article 26, Felicisimo was capacitated to contract a
subsequent marriage with respondent. Thus –

With the well-known rule – express mandate of paragraph 2, Article 26, of the Family Code of the
Philippines, the doctrines in Van Dorn, Pilapil, and the reason and philosophy behind the enactment
of E.O. No. 227, — there is no justiciable reason to sustain the individual view — sweeping
statement — of Judge Arc[h]angel, that "Article 26, par. 2 of the Family Code, contravenes the basic
policy of our state against divorce in any form whatsoever." Indeed, courts cannot deny what the law
grants. All that the courts should do is to give force and effect to the express mandate of the law.
The foreign divorce having been obtained by the Foreigner on December 14, 1992, 32 the Filipino
divorcee, "shall x x x have capacity to remarry under Philippine laws". For this reason, the marriage
between the deceased and petitioner should not be denominated as "a bigamous marriage.

Therefore, under Article 130 of the Family Code, the petitioner as the surviving spouse can institute
the judicial proceeding for the settlement of the estate of the deceased. x x x 33

Edgar, Linda, and Rodolfo filed separate motions for reconsideration 34

which were denied by the
Court of Appeals.

On July 2, 1998, Edgar appealed to this Court via the instant petition for review on
certiorari. 35 Rodolfo later filed a manifestation and motion to adopt the said petition which was
granted. 36

In the instant consolidated petitions, Edgar and Rodolfo insist that the venue of the subject petition
for letters of administration was improperly laid because at the time of his death, Felicisimo was a
resident of Sta. Cruz, Laguna. They contend that pursuant to our rulings in Nuval v. Guray 37 and
Romualdez v. RTC, Br. 7, Tacloban City, 38 "residence" is synonymous with "domicile" which denotes
a fixed permanent residence to which when absent, one intends to return. They claim that a person
can only have one domicile at any given time. Since Felicisimo never changed his domicile, the
petition for letters of administration should have been filed in Sta. Cruz, Laguna.

Petitioners also contend that respondent’s marriage to Felicisimo was void and bigamous because it
was performed during the subsistence of the latter’s marriage to Merry Lee. They argue that
paragraph 2, Article 26 cannot be retroactively applied because it would impair vested rights and
ratify the void bigamous marriage. As such, respondent cannot be considered the surviving wife of
Felicisimo; hence, she has no legal capacity to file the petition for letters of administration.

The issues for resolution: (1) whether venue was properly laid, and (2) whether respondent has legal
capacity to file the subject petition for letters of administration.

The petition lacks merit.

Under Section 1, 39 Rule 73 of the Rules of Court, the petition for letters of administration of the
estate of Felicisimo should be filed in the Regional Trial Court of the province "in which he resides at
the time of his death." In the case of Garcia Fule v. Court of Appeals, 40 we laid down the doctrinal
rule for determining the residence – as contradistinguished from domicile – of the decedent for
purposes of fixing the venue of the settlement of his estate:

[T]he term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence
or domicile." This term "resides," like the terms "residing" and "residence," is elastic and should be
interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the
application of venue statutes and rules – Section 1, Rule 73 of the Revised Rules of Court is of such
nature – residence rather than domicile is the significant factor. Even where the statute uses the
word "domicile" still it is construed as meaning residence and not domicile in the technical sense.
Some cases make a distinction between the terms "residence" and "domicile" but as generally used
in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term
"inhabitant." In other words, "resides" should be viewed or understood in its popular sense, meaning,
the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies
physical presence in a place and actual stay thereat. In this popular sense, the term means merely
residence, that is, personal residence, not legal residence or domicile. Residence simply requires
bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that
place and also an intention to make it one’s domicile. No particular length of time of residence is
required though; however, the residence must be more than temporary. 41 (Emphasis supplied)

It is incorrect for petitioners to argue that "residence," for purposes of fixing the venue of the
settlement of the estate of Felicisimo, is synonymous with "domicile." The rulings in Nuval and
Romualdez are inapplicable to the instant case because they involve election cases. Needless to
say, there is a distinction between "residence" for purposes of election laws and "residence" for
purposes of fixing the venue of actions. In election cases, "residence" and "domicile" are treated as
synonymous terms, that is, the fixed permanent residence to which when absent, one has the
intention of returning. 42 However, for purposes of fixing venue under the Rules of Court, the
"residence" of a person is his personal, actual or physical habitation, or actual residence or place of
abode, which may not necessarily be his legal residence or domicile provided he resides therein with
continuity and consistency. 43 Hence, it is possible that a person may have his residence in one place
and domicile in another.

In the instant case, while petitioners established that Felicisimo was domiciled in Sta. Cruz, Laguna,
respondent proved that he also maintained a residence in Alabang, Muntinlupa from 1982 up to the
time of his death. Respondent submitted in evidence the Deed of Absolute Sale 44 dated January 5,
1983 showing that the deceased purchased the aforesaid property. She also presented billing
statements 45 from the Philippine Heart Center and Chinese General Hospital for the period August
to December 1992 indicating the address of Felicisimo at "100 San Juanico, Ayala Alabang,
Muntinlupa." Respondent also presented proof of membership of the deceased in the Ayala Alabang
Village Association 46 and Ayala Country Club, Inc., 47 letter-envelopes 48 from 1988 to 1990 sent by
the deceased’s children to him at his Alabang address, and the deceased’s calling cards 49 stating
that his home/city address is at "100 San Juanico, Ayala Alabang Village, Muntinlupa" while his
office/provincial address is in "Provincial Capitol, Sta. Cruz, Laguna."

From the foregoing, we find that Felicisimo was a resident of Alabang, Muntinlupa for purposes of
fixing the venue of the settlement of his estate. Consequently, the subject petition for letters of
administration was validly filed in the Regional Trial Court 50 which has territorial jurisdiction over
Alabang, Muntinlupa. The subject petition was filed on December 17, 1993. At that time, Muntinlupa
was still a municipality and the branches of the Regional Trial Court of the National Capital Judicial
Region which had territorial jurisdiction over Muntinlupa were then seated in Makati City as per
Supreme Court Administrative Order No. 3. 51 Thus, the subject petition was validly filed before the
Regional Trial Court of Makati City.

Anent the issue of respondent Felicidad’s legal personality to file the petition for letters of
administration, we must first resolve the issue of whether a Filipino who is divorced by his alien
spouse abroad may validly remarry under the Civil Code, considering that Felicidad’s marriage to
Felicisimo was solemnized on June 20, 1974, or before the Family Code took effect on August 3,
1988. In resolving this issue, we need not retroactively apply the provisions of the Family Code,
particularly Art. 26, par. (2) considering that there is sufficient jurisprudential basis allowing us to rule
in the affirmative.

The case of Van Dorn v. Romillo, Jr. 52 involved a marriage between a foreigner and his Filipino wife,
which marriage was subsequently dissolved through a divorce obtained abroad by the latter.
Claiming that the divorce was not valid under Philippine law, the alien spouse alleged that his
interest in the properties from their conjugal partnership should be protected. The Court, however,
recognized the validity of the divorce and held that the alien spouse had no interest in the properties
acquired by the Filipino wife after the divorce. Thus:
In this case, the divorce in Nevada released private respondent from the marriage from the
standards of American law, under which divorce dissolves the marriage. As stated by the Federal
Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

"The purpose and effect of a decree of divorce from the bond of matrimony by a competent
jurisdiction are to change the existing status or domestic relation of husband and wife, and to free
them both from the bond. The marriage tie, when thus severed as to one party, ceases to bind
either. A husband without a wife, or a wife without a husband, is unknown to the law. When the law
provides, in the nature of a penalty, that the guilty party shall not marry again, that party, as well as
the other, is still absolutely freed from the bond of the former marriage."

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner’s husband entitled to exercise control
over conjugal assets. As he is bound by the Decision of his own country’s Court, which validly
exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his
own representation before said Court from asserting his right over the alleged conjugal property. 53

As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longer be
considered married to the alien spouse. Further, she should not be required to perform her marital
duties and obligations. It held:

To maintain, as private respondent does, that, under our laws, petitioner has to be
considered still 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. 54 (Emphasis added)

This principle was thereafter applied in Pilapil v. Ibay-Somera 55 where the Court recognized the
validity of a divorce obtained abroad. In the said case, it was held that the alien spouse is not a
proper party in filing the adultery suit against his Filipino wife. The Court stated that "the severance
of the marital bond had the effect of dissociating the former spouses from each other, hence the
actuations of one would not affect or cast obloquy on the other." 56

Likewise, in Quita v. Court of Appeals, 57 the Court stated that where a Filipino is divorced by his
naturalized foreign spouse, the ruling in Van Dorn applies. 58 Although decided on December 22,
1998, the divorce in the said case was obtained in 1954 when the Civil Code provisions were still in
effect.

The significance of the Van Dorn case to the development of limited recognition of divorce in the
Philippines cannot be denied. The ruling has long been interpreted as severing marital ties between
parties in a mixed marriage and capacitating the Filipino spouse to remarry as a necessary
consequence of upholding the validity of a divorce obtained abroad by the alien spouse. In his
treatise, Dr. Arturo M. Tolentino cited Van Dorn stating that "if the foreigner obtains a valid foreign
divorce, the Filipino spouse shall have capacity to remarry under Philippine law." 59 In Garcia v.
Recio, 60 the Court likewise cited the aforementioned case in relation to Article 26. 61

In the recent case of Republic v. Orbecido III, 62 the historical background and legislative intent
behind paragraph 2, Article 26 of the Family Code were discussed, to wit:

Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise
known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof states:

All marriages solemnized outside the Philippines in accordance with the laws in force in the country
where they were solemnized, and valid there as such, shall also be valid in this country, except
those prohibited under Articles 35, 37, and 38.

On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was
likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph
was added to Article 26. As so amended, it now provides:

ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)

xxxx
Legislative Intent

Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2
of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision
Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien
spouse who, after obtaining a divorce, is no longer married to the Filipino spouse.

Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v.
Romillo, Jr. The Van Dorn case involved a marriage between a Filipino citizen and a
foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is
valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry
under Philippine law. 63 (Emphasis added)

As such, the Van Dorn case is sufficient basis in resolving a situation where a divorce is validly
obtained abroad by the alien spouse. With the enactment of the Family Code and paragraph 2,
Article 26 thereof, our lawmakers codified the law already established through judicial precedent. 1awphi1.net

Indeed, when the object of a marriage is defeated by rendering its continuance intolerable to one of
the parties and productive of no possible good to the community, relief in some way should be
obtainable. 64 Marriage, being a mutual and shared commitment between two parties, cannot
possibly be productive of any good to the society where one is considered released from the marital
bond while the other remains bound to it. Such is the state of affairs where the alien spouse obtains
a valid divorce abroad against the Filipino spouse, as in this case.

Petitioners cite Articles 15 65 and 17 66 of the Civil Code in stating that the divorce is void under
Philippine law insofar as Filipinos are concerned. However, in light of this Court’s rulings in the cases
discussed above, the Filipino spouse should not be discriminated against in his own country if the
ends of justice are to be served. 67 In Alonzo v. Intermediate Appellate Court, 68 the Court stated:

But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its
purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge
should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should
never be interpreted in such a way as to cause injustice as this is never within the legislative intent.
An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is
to render justice.

Thus, we interpret and apply the law not independently of but in consonance with justice. Law and
justice are inseparable, and we must keep them so. To be sure, there are some laws that, while
generally valid, may seem arbitrary when applied in a particular case because of its peculiar
circumstances. In such a situation, we are not bound, because only of our nature and functions, to
apply them just the same, in slavish obedience to their language. What we do instead is find a
balance between the word and the will, that justice may be done even as the law is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded,
yielding like robots to the literal command without regard to its cause and consequence. "Courts are
apt to err by sticking too closely to the words of a law," so we are warned, by Justice Holmes again,
"where these words import a policy that goes beyond them."

xxxx

More than twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to
render every one his due." That wish continues to motivate this Court when it assesses the facts and
the law in every case brought to it for decision. Justice is always an essential ingredient of its
decisions. Thus when the facts warrants, we interpret the law in a way that will render justice,
presuming that it was the intention of the lawmaker, to begin with, that the law be dispensed with
justice. 69

Applying the above doctrine in the instant case, the divorce decree allegedly obtained by Merry Lee
which absolutely allowed Felicisimo to remarry, would have vested Felicidad with the legal
personality to file the present petition as Felicisimo’s surviving spouse. However, the records show
that there is insufficient evidence to prove the validity of the divorce obtained by Merry Lee as well
as the marriage of respondent and Felicisimo under the laws of the U.S.A. In Garcia v. Recio, 70 the
Court laid down the specific guidelines for pleading and proving foreign law and divorce judgments.
It held that presentation solely of the divorce decree is insufficient and that proof of its authenticity
and due execution must be presented. Under Sections 24 and 25 of Rule 132, a writing or document
may be proven as a public or official record of a foreign country by either (1) an official publication or
(2) a copy thereof attested by the officer having legal custody of the document. If the record is not
kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in
which the record is kept and (b) authenticated by the seal of his office. 71

With regard to respondent’s marriage to Felicisimo allegedly solemnized in California, U.S.A., she
submitted photocopies of the Marriage Certificate and the annotated text 72 of the Family Law Act of
California which purportedly show that their marriage was done in accordance with the said law. As
stated in Garcia, however, the Court cannot take judicial notice of foreign laws as they must be
alleged and proved. 73

Therefore, this case should be remanded to the trial court for further reception of evidence on the
divorce decree obtained by Merry Lee and the marriage of respondent and Felicisimo.

Even assuming that Felicisimo was not capacitated to marry respondent in 1974, nevertheless, we
find that the latter has the legal personality to file the subject petition for letters of administration, as
she may be considered the co-owner of Felicisimo as regards the properties that were acquired
through their joint efforts during their cohabitation.

Section 6, 74 Rule 78 of the Rules of Court states that letters of administration may be granted to the
surviving spouse of the decedent. However, Section 2, Rule 79 thereof also provides in part:

SEC. 2. Contents of petition for letters of administration. – A petition for letters of administration must
be filed by an interested person and must show, as far as known to the petitioner: x x x.

An "interested person" has been defined as one who would be benefited by the estate, such as an
heir, or one who has a claim against the estate, such as a creditor. The interest must be material
and direct, and not merely indirect or contingent. 75

In the instant case, respondent would qualify as an interested person who has a direct interest in the
estate of Felicisimo by virtue of their cohabitation, the existence of which was not denied by
petitioners. If she proves the validity of the divorce and Felicisimo’s capacity to remarry, but fails to
prove that her marriage with him was validly performed under the laws of the U.S.A., then she may
be considered as a co-owner under Article 144 76 of the Civil Code. This provision governs the
property relations between parties who live together as husband and wife without the benefit of
marriage, or their marriage is void from the beginning. It provides that the property acquired by either
or both of them through their work or industry or their wages and salaries shall be governed by the
rules on co-ownership. In a co-ownership, it is not necessary that the property be acquired through
their joint labor, efforts and industry. Any property acquired during the union is prima facie presumed
to have been obtained through their joint efforts. Hence, the portions belonging to the co-owners
shall be presumed equal, unless the contrary is proven. 77

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

The regime of limited co-ownership of property governing the union of parties who are not legally
capacitated to marry each other, but who nonetheless live together as husband and wife, applies to
properties acquired during said cohabitation in proportion to their respective contributions. Co-
ownership will only be up to the extent of the proven actual contribution of money, property or
industry. Absent proof of the extent thereof, their contributions and corresponding shares shall be
presumed to be equal.

xxxx

In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of co-
ownership of properties acquired by the parties to a bigamous marriage and an adulterous
relationship, respectively, we ruled that proof of actual contribution in the acquisition of the property
is essential. x x x

As in other civil cases, the burden of proof rests upon the party who, as determined by the pleadings
or the nature of the case, asserts an affirmative issue. Contentions must be proved by competent
evidence and reliance must be had on the strength of the party’s own evidence and not upon the
weakness of the opponent’s defense. x x x 81
In view of the foregoing, we find that respondent’s legal capacity to file the subject petition for letters
of administration may arise from her status as the surviving wife of Felicisimo or as his co-owner
under Article 144 of the Civil Code or Article 148 of the Family Code.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals reinstating and
affirming the February 28, 1994 Order of the Regional Trial Court which denied petitioners’ motion to
dismiss and its October 24, 1994 Order which dismissed petitioners’ motion for reconsideration is
AFFIRMED. Let this case be REMANDED to the trial court for further proceedings.

SO ORDERED.

CONSUELO YNARES-SANTIAGO
Associate Justice

WE CONCUR:

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.

Associate Justice Asscociate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

ATTESTATION

I attest that the conclusions in the above decision were reached in consultation before the case was
assigned to the writer of the opinion of the 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, it is
hereby certified that the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

1
Rollo of G.R. No. 133743, pp. 45-66. Penned by Associate Justice Artemon D. Luna and
concurred in by Associate Justices Godardo A. Jacinto and Roberto A. Barrios.

2
Records, pp. 335-338. Penned by Judge Paul T. Arcangel.
3
Id. at 391-393.

4
Rollo of G.R. No. 133743, p. 68. Penned by Associate Justice Artemon D. Luna and
concurred in by Associate Justices Demetrio G. Demetria and Roberto A. Barrios.

5
Records, p. 125.

6
Id. at 137.

7
Id. at 116.

8
Id. at 1-5.

9
Id. at 10-24.

10
Id. at 30-35.

11
Id. at 38.

12
Id. at 39-138.

13
When a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity to remarry under Philippine law.

14
G.R. No. L-68470, October 8, 1985, 139 SCRA 139.

15
See Records, pp. 155-158, 160-170 and 181-192.

16
This Code shall have retroactive effect insofar as it does not prejudice or impair vested
rights or acquired rights in accordance with the Civil Code or other laws.

17
Records, p. 259.

18
Id. at 260.

19
Id. at 262-267.

20
Id. at 270-272.

21
Id. at 288.

22
Id. at 301.

23
Id. at 302-303.

24
Id. at 306-311.

25
Id. at 318-320.
26
Id. at 339-349.

27
Id. at 350-354.

28
Id. at 391-393.

29
Rollo of G.R. No. 133743, p. 66.

30
Supra note 14.

31
G.R. No. 80116, June 30, 1989, 174 SCRA 653.

32
Parenthetically, it appears that the Court of Appeals proceeded from a mistaken finding of
fact because the records clearly show that the divorce was obtained on December 14, 1973
(not December 14, 1992) and that the marriage of Gov. San Luis with respondent was
celebrated on June 20, 1974. These events both occurred before the effectivity of the Family
Code on August 3, 1988.

33
Rollo of G.R. No. 133743, p. 65.

34
See CA rollo, pp. 309-322, 335-340, and 362-369.

35
Rollo of G.R. No. 133743, pp. 8-42.

36
Id. at 75.

37
52 Phil. 645 (1928).

38
G.R. No. 104960, September 14, 1993, 226 SCRA 408.

39
SECTION 1. Where estate of deceased persons be settled. — If the decedent is an
inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will
shall be proved, or letters of administration granted, and his estate settled, in the Court of
First Instance in the province in which he resides at the time of his death, x x x.
(Underscoring supplied)

40
G.R. Nos. L-40502 & L-42670, November 29, 1976, 74 SCRA 189.

41
Id. at 199-200.

42
Romualdez v. RTC, Br. 7, Tacloban City, supra note 38 at 415.

See Boleyley v. Villanueva, 373 Phil. 141, 146 (1999); Dangwa Transportation Co. Inc. v.
43

Sarmiento, G.R. No. L-22795, January 31, 1977, 75 SCRA 124, 128-129.

44
Records, pp. 76-78.

45
Id. at 60-75.

46
Id. at 79.
47
Id. at 80.

48
Id. at 81-83.

49
Id. at 84.

50
The Regional Trial Court and not the Municipal Trial Court had jurisdiction over this case
because the value of Gov. San Luis’ estate exceeded ₱200,000.00 as provided for under
B.P. Blg 129, Section 19(4).

51
SC Administrative Order No. 3 dated January 19, 1983 states in part:

Pursuant to the provisions of Section 18 of B.P. Blg. 129, and Section 4 of the
Executive Order issued by the President of the Philippines on January 17, 1983,
declaring the reorganization of the Judiciary, the territorial jurisdiction of the Regional
Trial Courts in the National Capital Judicial Region are hereby defined as follows:

xxxx

5. Branches CXXXII to CL, inclusive, with seats at Makati – over the municipalities of
Las Pinas, Makati, Muntinlupa and Parañaque. x x x

52
Supra note 14.

53
Id. at 139, 143-144.

54
Id. at 144.

55
Supra note 31.

56
Id. at 664.

57
G.R. No. 124862, December 22, 1998, 300 SCRA 406.

Id. at 414; See also Republic v. Orbecido III, G.R. No. 154380, October 5, 2005, 472
58

SCRA 114, 121.

Tolentino, Arturo M., Commentaries and Jurisprudence on the Civil Code of the
59

Philippines, Vol. I, 1990 ed., p. 263.

60
G.R. No. 138322, October 2, 2001, 366 SCRA 437.

61
Id. at 447.

62
Supra note 58.

63
Id. at 119-121.

64
Goitia v. Campos Rueda, 35 Phil. 252, 254-255 (1916).
65
ART. 15. Laws relating to family rights and duties, or to the status, condition and legal
capacity of persons are binding upon citizens of the Philippines, even though living abroad.

66
Art. 17. x x x 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.

67
Supra note 14 at 144.

68
G.R. No. L-72873, May 28, 1987, 150 SCRA 259.

69
Id. at 264-265, 268.

70
Supra note 60.

71
Id. at 448-449.

72
Records, pp. 118-124.

73
Supra note 60 at 451.

74
SEC. 6. When and to whom letters of administration granted. – If x x x a person dies
intestate, administration shall be granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in
the discretion of the court, or to such person as such surviving husband or wife, or
next of kin, requests to have appointed, if competent and willing to serve; x x x.

75
Saguinsin v. Lindayag,116 Phil. 1193, 1195 (1962).

76
Article 144 of the Civil Code reads in full:

When a man and a woman live together as husband and wife, but they are not
married, or their marriage is void from the beginning, the property acquired by either
or both of them through their work or industry or their wages and salaries shall be
governed by the rules on co-ownership.

77
Valdes v. RTC, Br. 102, Quezon City, 328 Phil. 1289, 1297 (1996).

Francisco v. Master Iron Works & Construction Corporation, G.R. No. 151967, February
78

16, 2005, 451 SCRA 494, 506.

79
G.R. No. 150611, June 10, 2003, 403 SCRA 678.

80
Id. at 686.

81
Id. at 679, 686-687.