Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-1960 November 26, 1948

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FLORENTINO ABILONG, defendant-appellant.

Carlos Perfecto for appellant.

Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Manuel Tomacruz for appellee.

MONTEMAYOR, J.:

Florentino Abilong was charged in the Court of First Instance of Manila with evasion of service
of sentence under the following information:

That on or about the 17th day of September, 1947, in the City of Manila, Philippines, the
said accused, being then a convict sentenced and ordered to serve two (2) years, four (4)
months and one (1) day of destierro during which he should not enter any place within the
radius of 100 kilometers from the City of Manila, by virtue of final judgment rendered by
the municipal court on April 5, 1946, in criminal case No. B-4795 for attempted robbery,
did then and there wilfully, unlawfully and feloniously evade the service of said sentence
by going beyond the limits made against him and commit vagrancy.

Contrary to law.

Upon arraignment he pleaded guilty and was sentenced to two (2) years, four (4) months and one
(1) day of prision correccional, with the accessory penalties of the law and to pay the costs. He is
appealing from that decision with the following assignment of error:

1. The lower court erred in imposing a penalty on the accused under article 157 of the
Revised Penal Code, which does not cover evasion of service of "destierro."

Counsel for the appellant contends that a person like the accused evading a sentence of destierro is
not criminally liable under the provisions of the Revised Penal Code, particularly article 157 of
the said Code for the reason that said article 157 refers only to persons who are imprisoned in a
penal institution and completely deprived of their liberty. He bases his contention on the word
"imprisonment" used in the English text of said article which in part reads as follows:

Evasion of service of sentence. — The penalty of prision correccional in its medium and
maximum periods shall be imposed upon any convict who shall evade service of his
sentence by escaping during the term of his imprisonment by reason of final judgment.

The Solicitor General in his brief says that had the original text of the Revised Penal Code been in
the English language, then the theory of the appellant could be uphold. However, it is the Spanish
text that is controlling in case of doubt. The Spanish text of article 157 in part reads thus:

ART. 157. Quebrantamiento de sentencia. — Sera castigado con prision correccional en

sus grados medio y maximo el sentenciado que quebrantare su condena, fugandose
mientras estuviere sufriendo privacion de libertad por sentencia firme; . . . .

We agree with the Solicitor General that inasmuch as the Revised Penal Code was originally
approved and enacted in Spanish, the Spanish text governs (People vs. Manaba, 58 Phil., 665,
668). It is clear that the word "imprisonment" used in the English text is a wrong or erroneous
translation of the phrase "sufriendo privacion de libertad" used in the Spanish text. It is equally
clear that although the Solicitor General impliedly admits destierro as not constituting
imprisonment, it is a deprivation of liberty, though partial, in the sense that as in the present case,
the appellant by his sentence of destierro was deprived of the liberty to enter the City of Manila.
This view has been adopted in the case of People vs. Samonte, No. 36559 (July 26, 1932; 57 Phil.,
968) wherein this Court held, as quoted in the brief of the Solicitor General that "it is clear that a
person under sentence of destierro is suffering deprivation of his liberty and escapes from the
restrictions of the penalty when he enters the prohibited area." Said ruling in that case was ratified
by this Court, though, indirectly in the case of People vs. Jose de Jesus, (45 Off. Gaz. Supp. to No.
9, p. 370)1, where it was held that one evades the service of his sentence of destierro when he
enters the prohibited area specified in the judgment of conviction, and he cannot invoke the
provisions of the Indeterminate Sentence Law which provides that its provisions do not apply to
those who shall have escaped from confinement or evaded sentence.

In conclusion we find and hold that the appellant is guilty of evasion of service of sentence under
article 157 of the Revised Penal Code (Spanish text), in that during the period of his sentence
of destierro by virtue of final judgment wherein he was prohibited from entering the City of
Manila, he entered said City.

Finding no reversible error in the decision appealed from, the same is hereby affirmed with costs
against the appellant. So ordered.

Moran, C. J., Paras, Feria, Pablo, Bengzon and Tuason, JJ., concur.

Separate Opinions

PERFECTO, J., dissenting:

The legal question raised in this case is whether or not appellant, for having violated his judgment
of destierro rendered by the Municipal Court of Manila, can be sentenced under article 157 of the
Revised Penal Code which reads as follows:

Evasion of service of sentence. — The penalty of prision correccional in its medium and
maximum periods shall be imposed upon any convict who shall evade service of his
sentence by escaping during the term of his imprisonment by reason of final judgment.
However, if such evasion or escape shall have taken place by means of unlawful entry, by
breaking doors, windows, gates, walls, roofs, or floors, or by using picklocks, false keys,
disguise, deceit, violence or intimidation, or through connivance with other convicts or
employees of the penal institution, the penalty shall be prision correccional in its maximum
period.

Appellant invokes in his favor the negative opinion of author Guillermo Guevara (Revised Penal
Code, 1946, p. 322). This negative position is supported by another author, Ambrosio Padilla
(Revised Penal Code annotated, p. 474).

The prosecution invokes the decision of this Court in People vs. De Jesus, L-1411,2promulgated
April 16, 1948, but said decision has no application because in said case the legal question involved
in the case at bar was not raised. The Supreme Court did not consider the question of interpretation
of the wording of article 157. Undoubtedly, there was occasion for considering the question, but
the Court nevertheless failed to do so. This failure to see the question, at the time, is only an
evidence that the tribunal is composed of human beings for whom infallibility is beyond reach.

The prosecution maintains that appellant's contention, supported by two authors who have
considered the question, although tenable under the English text of article 157, is not so under the
Spanish text, which is the one controlling because the Revised Penal Code was originally enacted
by the Legislature in Spanish.
There is no quarrel, therefore, that under the above quoted English text, the appellant is entitled to
acquittal. The question now is whether or not the Spanish text conveys a thing different from that
which can be read in the English text. The Spanish text reads as follows:

ART. 157. Quebrantamiento de sentencia. — Sera castigado con prision correccional en

sus grados medio y maximo el sentenciado que quebrantare su condena, fugandose
mientras estuviere sufriendo privacion de libertad por sentencia firme; pero si la evasion o
fuga se hubiere llevado a efecto con escalamiento, fractura de puertas, ventanas, verjas,
paredes, techos o suelos, o empleado ganzuas, llaves falsas, disfraz, engano, violencia o
intimidacion, o poniendose de acuerdo con otros sentenciados o dependientes del
establecimiento donde a hallare recluido la pena sera prision correccional en su grado
maximo.

The question boils down to the words "fugandose mientras estuviere sufriendo privacion de
libertad por sentencia firme," which are translated into English "by escaping during the term of his
imprisonment by reason of final judgment." The prosecution contends that the words "privacion
de libertad" in the Spanish text is not the same as the word "imprisonment" in the English text, and
that while "imprisonment" cannot include destierro, "privacion de libertad" may include it.

The reason is, however, the result of a partial point of view because it obliterates the grammatical,
logical, ideological function of the words "fugandose" and "by escaping" in the Spanish and
English texts, respectively. There should not be any question that, whatever meaning we may want
to give to the words "privacion de libertad," it has to be conditioned by the verb "fugandose," (by
escaping). "Privacion de libertad" cannot be considered independently of "fugandose."

There seems to be no question that the Spanish "fugandose" is correctly translated into the English
"by escaping." Now, is there any sense in escaping from destierro or banishment, where there is
no enclosure binding the hypothetical fugitive? "Fugandose" is one of the forms of the Spanish
verb "fugar," to escape. The specific idea of "evasion" or "escape" is reiterated by the use of said
words after the semi-colon in the Spanish text and after the first period in the English text. Either
the verb "to escape" or the substantive noun "escape" essentially pre-supposes some kind of
imprisonment or confinement, except figuratively, and Article 157 does not talk in metaphors or
parables.

"To escape" means "to get away, as by flight or other conscious effort; to break away, get free, or
get clear, from or out of detention, danger, discomfort, or the like; as to escape from prison. To
issue from confinement or enclosure of any sort; as gas escapes from the mains." (Webster's New
International Dictionary.)

"Escape" means "act of escaping, or fact or having escaped; evasion of or deliverance from injury
or any evil; also the means of escape. The unlawful departure of a prisoner from the limits of his
custody. When the prisoner gets out of prison and unlawfully regains his liberty, it is an actual
escape." (Webster's New International Dictionary.)

"Evasion" means "escape." (Webster's New International Dictionary.) .

The "destierro" imposed on appellant banished him from Manila alone, and he was free to stay in
all the remaining parts of the country, and to go and stay in any part of the globe outside the
country. With freedom to move all over the world, it is farfetched to allege that he is in any
confinement from which he could escape.

The words "privacion de libertad" have been correctly translated into the English "imprisonment,"
which gives the idea exactly conveyed by "privacion de libertad" in the Spanish text. Undoubtedly,
the drafters of the latter could have had used a more precise Spanish word, but the literary error
cannot be taken as a pretext to give to the less precise words a broader meaning than is usually
given to them.
"Privacion de libertad," literally meaning "deprivation of liberty or freedom," has always been
used by jurist using the Spanish language to mean "imprisonment." They have never given them
the unbounded philosophical scope that would lead to irretrievable absurdities.

Under that unlimited scope, no single individual in the more than two billion inhabitants of the
world can be considered free, as the freest citizen of the freest country is subject to many
limitations or deprivations of liberty. Under the prosecution's theory, should an accused, sentenced
to pay a fine of one peso, evade the payment of it, because the fine deprives him of liberty to
dispose of his one peso, he will be liable to be punished under article 157 of the Revised Penal
Code to imprisonment of from more that two years to six years. The iniquity and cruelty of such
situation are too glaring and violent to be entertained for a moment under our constitutional
framework.

There is no gainsaying the proposition that to allow the violation of a sentence of destierro without
punishment is undesirable, but even without applying article 157 of the Revised Penal Code, the
act of the appellant cannot remain unpunished, because his violation of the sentence
of destierro may be punished as contempt of court, for which imprisonment up to six months is
provided.

It is deplorable that article 157 should not provide for a situation presented in this case, but the gap
cannot be filled by this Court without encroaching upon the legislative powers of Congress.

Perhaps it is better that evasions of sentence be punished, as provided by the old Penal Code, by
an increased in the evaded penalty. This will be more reasonable that the penalties provided by
article 157, which appear to be disproportionate and arbitrary, because they place on equal footing
the evader of a sentence of one day of imprisonment and a life-termer, one who commits an
insignificant offense and one who perpetrates the most heinous crime. At any rate, this is a problem
for Congress to solve.

The appealed decision should be set aside.

BRIONES, J., concurring:

I concur in the foregoing dissenting opinion, because evidently the word "fugandose" in the
Spanish text refers to imprisonment, not to destierro.

Footnotes
1
80 Phil., 746.
2
80 Phil., 746.

______________________________________________________________________________

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

THE PEOPLE OF THE PHILIPPINES, petitioner,

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

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

THE PEOPLE OF THE PHILIPPINES, petitioner,

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

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

THE PEOPLE OF THE PHILIPPINES, petitioner,

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

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

THE PEOPLE OF THE PHILIPPINES, petitioner,

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

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

Norberto Parto for respondents Candelosas, Baes and Garcia.

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

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

Norberto L. Apostol for respondent Panchito Refuncion.

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

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

Execut
ive
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:

ILLEGAL POSSESSION OF

DEADLY WEAPON

(VIOLATION OF PD NO. 9)

INFORMATION

The undersigned First Assistant Provincial Fiscal of Samar, accuses PANCHITO

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

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

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

B. — The Orders of dismissal —

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

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

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

xxx xxx xxx

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

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

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

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

As earlier noted the "desired result" sought to be attained by Proclamation No.

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

xxx xxx xxx

The mere carrying outside of one's residence of these deadly weapons if not
concealed in one's person and if not carried in any of the aforesaid specified
places, would appear to be not unlawful and punishable by law.

With the promulgation of Presidential Decree No. 9, however, the prosecution,

through Assistant Fiscal Hilario H. Laqui, contends in his opposition to the
motion to quash, that this act is now made unlawful and punishable, particularly
by paragraph 3 thereof, regardless of the intention of the person carrying such
weapon because the law makes it "mala prohibita". If the contention of the
prosecution is correct, then if a person happens to be caught while on his way
home by law enforcement officers carrying a kitchen knife that said person had
just bought from a store in order that the same may be used by one's cook for
preparing the meals in one's home, such person will be liable for punishment with
such a severe penalty as imprisonment from five to ten years under the decree.
Such person cannot claim that said knife is going to be used by him to earn a
livelihood because he intended it merely for use by his cook in preparing his
meals.

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

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

xxx xxx xxx

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

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

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

xxx xxx xxx

It is public knowledge that in rural areas, even before and during martial law, as a
matter of status symbol, carrying deadly weapons is very common, not
necessarily for committing a crime nor as their farm implement but for self-
preservation or self-defense if necessity would arise specially in going to and
from their farm. (pp. 18-19, rollo of L-46997)

In most if not all of the cases, the orders of dismissal were given before arraignment of the
accused. In the criminal case before the Court of (First Instance of Samar the accused was
arraigned but at the same time moved to quash the Information. In all the cases where the
accused were under arrest, the three Judges ordered their immediate release unless held on other
charges.

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

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

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

PRESIDENTIAL DECREE NO. 9

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

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

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

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

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

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

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

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

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

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

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

(b) The penalty of imprisonment ranging from twenty years to life imprisonment
as a Military Court/Tribunal/commission may direct, when the violation is not
attended by any of the circumstances enumerated under the preceding paragraph;

(c) The penalty provided for in the preceding paragraphs shall be imposed upon
the owner, president, manager, members of the board of directors or other
responsible officers of any public or private firms, companies, corporations or
entities who shall willfully or knowingly allow any of the firearms owned by such
firm, company, corporation or entity concerned to be used in violation of said
General Orders Nos. 6 and 7.

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

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

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

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

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

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

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

(SGD) FERDINAND
E. MARCOS

Preside
nt

Republic of the
Philippines

D. — The arguments of the People —

In the Comment filed in these cases by the Solicitor General who as stated earlier joins the City
Fiscal of Manila and the Provincial Fiscal of Samar in seeking the setting aside of the questioned
orders of dismissal, the main argument advanced on the issue now under consideration is that a
perusal of paragraph 3 of P.D. 9 'shows that the prohibited acts need not be related to subversive
activities; that the act proscribed is essentially a malum prohibitum penalized for reasons of
public policy.1

The City Fiscal of Manila in his brief adds further that in statutory offenses the intention of the
accused who commits the act is immaterial; that it is enough if the prohibited act is voluntarily
perpetuated; that P.D. 9 provides and condemns not only the carrying of said weapon in
connection with the commission of the crime of subversion or the like, but also that of
criminality in general, that is, to eradicate lawless violence which characterized pre-martial law
days. It is also argued that the real nature of the criminal charge is determined not from the
caption or preamble of the information nor from the specification of the provision of law alleged
to have been violated but by the actual recital of facts in the complaint or information.2

E. — Our Ruling on the matter —

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

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

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

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

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

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

We do not agree with petitioner that the above-mentioned statute and the city ordinance are
deemed repealed by P.D. 9 (3). 5 P. D. 9(3) does not contain any repealing clause or provision,
and repeal by implication is not favored. 6This principle holds true with greater force with
regards to penal statutes which as a rule are to be construed strictly against the state and liberally
in favor of the accused. 7 In fact, Article 7 of the New Civil Code provides that laws are repealed
only by subsequent ones and their violation or non- observance shall not be excused by disuse, or
custom or practice to the contrary.
Thus we are faced with the situation where a particular act may be made to fall, at the discretion
of a police officer or a prosecuting fiscal, under the statute, or the city ordinance, or the
presidential decree. That being the case, the right becomes more compelling for an accused to be
confronted with the facts constituting the essential elements of the offense charged against him,
if he is not to become an easy pawn of oppression and harassment, or of negligent or misguided
official action — a fear understandably shared by respondent Judges who by the nature of their
judicial functions are daily exposed to such dangers.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

xxx xxx xxx

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

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

xxx xxx xxx

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

F. The Informations filed by petitioner are fatally defective.

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

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

In U.S.U. Gacutan, 1914, it was held that where an accused is charged with knowingly rendering
an unjust judgment under Article 204 of the Revised Penal Code, failure to allege in the
Information that the judgment was rendered knowing it to be unjust, is fatal. 14

In People v. Yadao, 1954, this Court through then Justice Cesar Bengzon who later became
Chief Justice of the Court affirmed an order of the trial court which quashed an Information
wherein the facts recited did not constitute a public offense as defined in Section 1, Republic Act
145. 15

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

Pertinent provisions of the Rules of Court follow:

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

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

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

xxx xxx xxx

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

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

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

Section 8. Rule 117 states that:

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

Under the foregoing, the filing of another complaint or Information is barred only when the
criminal action or liability had been extinguished (Section 2[f]) or when the motion to quash was
granted for reasons of double jeopardy. (ibid., [h])

As to whether or not a plea of double jeopardy may be successfully invoked by the accused in all
these cases should new complaints be filed against them, is a matter We need not resolve for the
present.

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

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

In any case, please study well each and every case of this nature so that persons
accused of carrying bladed weapons, specially those whose purpose is not to
subvert the duly constituted authorities, may not be unduly indicted for the serious
offenses falling under P.D. No. 9.17

Yes, while it is not within the power of courts of justice to inquire into the wisdom of a law, it is
however a judicial task and prerogative to determine if official action is within the spirit and
letter of the law and if basic fundamental rights of an individual guaranteed by the Constitution
are not violated in the process of its implementation. We have to face the fact that it is an unwise
and unjust application of a law, necessary and justified under prevailing circumstances, which
renders the measure an instrument of oppression and evil and leads the citizenry to lose their
faith in their government.
WHEREFORE, We DENY these 26 Petitions for Review and We AFFIRM the Orders of
respondent Judges dismissing or quashing the Information concerned, subject however to Our
observations made in the preceding pages 23 to 25 of this Decision regarding the right of the
State or Petitioner herein to file either an amended Information under Presidential Decree No. 9,
paragraph 3, or a new one under other existing statute or city ordinance as the facts may warrant.

Without costs.

SO ORDERED.

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

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

Aquino, J, took no part.

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.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 156 September 27, 1946

MILTON GREENFIELD, plaintiff-appellant,

vs.
BIBIANO L. MEER, defendant-appellee.

Francisco Dalupan for appellant.

First Assistant Solicitor General Reyes and Solicitor Arguelles for appellee.

FERIA, J.:

This is an appeal from the decision of the Court of First Instance of Manila which dismisses the
complaint of the plaintiff and appellant containing two causes of action; one to recover the sum
of P9,008.14 paid as income tax for the year 1939 by plaintiff to defendant under protest, by
reason of defendant having disallowed a deduction of P67,307.80 alleged by plaintiff to be losses
in his trade or business; and the other to reclaim, in the event the first cause of action is
dismissed, the sum of P475 collected by defendant from plaintiff illegally according to the latter,
because the former has erroneously computed the tax on personal and additional exemptions.

The following are the pertinent facts stipulated and submitted by the parties to the lower court:

2. That since the year 1933 up to the present time, the plaintiff has been continuously
engaged in the embroidery business located at 385 Cristobal, City of Manila and carried
on under his name;

3. That in 1935 the plaintiff began engaging in buying and selling mining stocks and
securities for his own exclusive account and not for the account of others . . .;

4. That Exhibit A attached to the complaint and made a part hereof represents plaintiff's
purchases and sales of each class of stock and security as well as the profits and losses
resulting on each class during the year 1939;

5. That the plaintiff has not been a dealer in securities as defined in section 84 (t) of
Commonwealth Act No. 466; that he has no established place of business for the
purchase and sale of mining stocks and securities; and that he was never a member of any
stock exchange;

6. That the plaintiff filed an income tax return for the calendar year 1939 showing that he
made a net profit amounting to P52,449.29 on embroidery business and P17,850 on
dividends from various corporations; and that from the purchase and sales of mining
stocks and securities he made a profit of P10,741.30 and incurred losses in the amount of
P78,049.10, thereby sustaining a net loss of P67,307.80, which income tax return is
hereto attached and marked Exhibit B;

7. That in said income tax return for 1939, the plaintiff declared the results of his stock
transactions under Schedule B (Income from Business);but the defendant ruled that they
should be declared in the income tax return, Exhibit B, under Schedule D (Gains and
Losses from Sales or Exchanges of Capital Assets, real or personal);

8. That in said income tax return, said plaintiff claims his deduction of P67,307.80
representing the net loss sustained by him in mining stocks securities during the year
1939; and that the defendant disallowed said item of deduction on the ground that said
 losses were sustained by the plaintiff from the sale of mining stocks and securities which
are capital assets, and that the loss arising from the sale of the same should be allowed
only to the extent of the gains from such sales, which gains were already taken into
consideration in the computation of the alleged net loss of P67,307.80;

9. That the defendant assessed plaintiff's income tax return for the year 1939 at
P13,771.06 as shown in the following computation appearing in the audit sheet of the
defendant hereto attached and marked Exhibit C;

Net income as per return of plaintiff for 1939 P70,299.29

Add: Net Loss on sale of mining stocks and

securities disallowed in audit 67,307.80

P137,607.09
Total net income as per office audit =========

Amount of tax on net income as per office

audit P13,821.06

Less: Tax on exemptions:

Personal exemption P2,500.00

Additional exemption 1,000.00

Total P3,500.00

Tax on exemption 50.00

P13,771.06
Net amount of tax due =========

10. That the defendant computed the graduated rate of income tax due on the entire net
income as per office audit, without first deducting therefrom the amount of personal and
additional exemptions to which the plaintiff is entitled, allowing said plaintiff a deduction
from the assessed tax the amount of P50 corresponding to the exemption of P3,500;

11. That the plaintiff, objecting and excepting to all the ruling of the defendant above
mentioned and in assessing plaintiff with P13,771.06, claimed from the defendant the
refund of P9,008.14 or in the alternative case P475, which claim of plaintiff was
overruled by the defendant;

The questions raised by appellant in his four (4) assignments of error may be reduced into the
following: (1) Whether the losses sustained by the plaintiff from the buying and selling of
mining securities during the year 1939 are losses incurred in trade and business, deductible under
section 30 (d) (1)(A) of Commonwealth Act No. 466 from his gains in his embroidery business
and other income; or whether they are capital losses from sales of capital assets which shall be
allowed only to the extent of the gains from such sales under section 34 of the same
Commonwealth Act No. 466. And (2) whether, under the present law, the personal and
additional exemptions granted by section 23 of the same Act, should be considered as a credit
against or be deducted from the net income, or whether it is the tax on such exemptions that
should be deducted from the tax on the total net income.

1. As to the first question, it is agreed in the above-quoted stipulation of facts that the plaintiff
was not a dealer in securities or share of stock as defined in section 84 (t) of Commonwealth Act
No. 466. The question for determination is whether appellant, though not a dealer in mining
securities, may be considered as engaged in the business of buying and selling them under
section 30 (d), (1) (A) of said Act No. 466.
It is evident that, taking into consideration the nature of mining securities, which may be bought
or sold either as a business or for speculation purposes only, the National Assembly of the
Philippines has deemed it necessary to define or determine beforehand in section 84 (t) of
Commonwealth Act No. 466 who may be considered as persons engaged in the trade or business
of buying and selling securities within the meaning of the phrase "incurred in trade or business"
used in section 30 (d) (1) (A) of the same Act, in order to avoid any question or doubt as to
deductibility of all losses incurred by a merchant in securities from his net income from whatever
source. The definition of dealer or merchant in securities given in said section 84 (t) includes
persons, natural or juridical, who are engaged in the purchase and sale of securities whether for
his their own account or for others, provided they have a place of business and are regularly
engaged therein. There was formerly some doubt or question as to whether a person engaged in
buying or selling securities for his own account might be considered as engaged in that trade or
business, and several cases involving such question had been submitted to the United States
Federal Courts for ruling, and to the Income Tax Units of the United States Bureau of Internal
Revenue for opinion. But with the inclusive definition of the term "dealer" or merchant of
securities given in section 84 (t) of Act No. 466, such doubt can no longer arise.

Said section 84 (t) reads as follows:

(t) The term "dealer in securities" means a merchant of stocks or securities, whether an
individual, partnership, or corporation, with an established place of business, regularly
engaged in the purchase of securities and their resale of customers; that is, one who as a
merchant buys securities and sells them to customers with a view to the gains and profits
that may be derived therefrom.

Appellant assumes, however, that the above-quoted definition does not cover or include all
persons engaged in the trade or business of buying and selling securities within the meaning of
said section 30 (d) (1) (A). He contends that, although he is not a dealer in mining securities, he
may be considered as having been engaged in the trade or business of buying and selling
securities. And in support of his contention appellant quotes Opinion No. 1818 of the Income
Tax Unit of the United States Bureau of Internal Revenue(I.T. No. 1818, C.B. II, pp. 39-41), in
which opinion the following was said:

The taxpayer is not a member of any stock exchange, has no place of business, and does
not make purchase and sales of securities for customers. Much of his trading is done on
margin. He devotes the greater part of the time in his broker's office keeping in touch
with the market. He has no other trade or business, his income consisting entirely of
interest bonds, dividends on stocks, and profits from the sale or disposition of securities.

Advice is requested (1) whether this taxpayer is entitled to the benefit of section 204 of
the Revenue Act of 1921, with reference to a net loss incurred in 1921, from the sale of
stocks; (2) whether he is entitled to the benefit of section 206 of the Revenue Act of
1921, with regard to gains derived in 1922 from the sale of two blocks of stock held more
than two years.

1. Section 204 (a) provides in part:

That as used in this section the term "net loss" means only net losses resulting from the
operation of any trade or business regularly carried on by the taxpayer . . .

The question is, than, whether the taxpayer was regularly engaged in the trade or business
of buying and selling securities.

The interpretation placed upon the term "business or trade" by the courts and the
department may be indicated by a few illustrative decisions. In two early cases (In
re Marson [1871], Fed. Cas. No. 9142, and In re Woodward [1876], Fed. Cas. No.
18001) it was held that a speculator in stocks was not a "merchant or tradesman" within
the meaning of the Bankruptcy Act of 1867. It was said in the former case:
 "The only business he was engaged in was what is called speculating in stocks, that is,
buying and selling them, with a view to his own profit, to be made by the excess of the
selling price over the buying price . . . The fact that the bankrupt was engaged in no other
business can not have the effect to make him a merchant or a tradesman, because he
carried on the business he did carry on in the way which he carried it on."

That is, although his business was buying and selling, since this business was simply with
a view to his own profit and not for others, has was not a merchant or tradesman.
Compare In re Surety Guarantee & Trust Co. ([1902], 121 Fed., 73) and In re H.R.
Leighton & Co. ([1906], 147 Fed., 311).

With this background, the Department, in Treasury Decisions 1989, 2005, 2090, and
2135 (not published in Bulletin service), held that the provision of paragraph B of the
1913 Act, allowing as a deduction for the purpose of the normal tax "losses actually
sustained during the year, incurred in trade . . .", did not include losses from isolated
transactions; for instance, in stocks and bonds. In Mente vs. Eisner ([1920], 266 Fed.,
161) (certiorari denied, 254 U.S., 635), these rulings were upheld in a case in which a
manufacturer of bagging was denied deductions for losses in buying and selling cotton on
the cotton exchange for his individual account, not connected with his manufacturing
business. (Cf. Black vs. Bolen [1920], 268 Fed., 427.) Likewise, in L.O. 601 (not
published in Bulletin service), it was held that "losses sustained by a person in buying
and selling securities in his own account, he not being a licensed stock and bond broker
buying and selling for others as well as for himself, are not deductible as losses in trade
within the meaning of paragraph B of the Act of October 3, 1913." The basis of these
opinions is thus seen to be (1) that dealing in securities on one's own account is not
technically a "trade"; (2) that isolated transactions in securities, not connected with the
tax payer's regular business do not constitute a "trade."

In the Act of September 8, 1916, the wording of the 1913 Act was slightly changed
(section 5 [a], fourth) to permit a deduction of "losses actually sustained during the year,
incurred in his business or trade . . ." Under this more liberal provision, it has been
uniformly held that where a taxpayer devoted all his time, or the major portion of it, to
buying and selling securities on his own account, this occupation was his "business"; and
therefore he was permitted to deduct losses sustained in such dealings as being "incurred
in his business." A. R. R. 404 (C.B. 4, p. 157); semble L. O.601. These rulings are
inferentially supported by the definitions of trade or business to comprehend "all his
activities for gain, profit, or livelihood, entered into with sufficient frequency, or
occupying such portion of his time or attention as to constitute a vocation," contained in
article 8 of Regulations 41, relative to the war excess-profits tax (approved in Woods vs.
Lewellyn [1921], 289 Fed., 498). . .

It is submitted that these decisions are a sound interpretation of the accepted definition of
business: "Business is a very comprehensive term and embraces everything about which
a person can be employed." Black's Law Dictionary, 158, citing People vs.
Commissioners of Taxes (23 New York, 242, 244). "That which occupies the time,
attention and labor of men for the purpose of a livelihood or profit." Bouvier's Law
Dictionary, Vol. 1, p. 273. Fling vs. Stone Tracy Co. (1910), 220 U. S., 107 at 171; 31
Sup Ct., 342; 55 Law. ed., 389; Ann. Cas. 1912-B, 1312; cited with approval in Von
Baumbach vs. Sargent Land Company (1916), 242 U. S., 503, at 515. If they are sound,
the facts of the instant case require a ruling that the taxpayer was regularly engaged in the
business of buying and selling securities on his own account and was, therefore, entitled
to the benefit of the provisions of section 204(a). (I. T. No. 1818; C. B. II-2, pp. 39-41.)

But, assuming arguendo that the above-quoted opinion may be applied to the present case, it is
evident that the appellant can not be considered as having been engaged in the business of
buying and selling securities within the meaning of section 30 (d) (1) (A) of Act No. 466
According to said opinion, in order that he may so be considered, it is necessary that he must
devote all his time or at least a major portion thereof to said business and that the latter must be
regularly carried on by him.

In the stipulation of facts presented in this case it is agreed that "since the year 1933 up to the
present time, the plaintiff has been continuously engaged in the embroidery business," and that
"in 1935, the plaintiff began engaging in buying and selling mining stocks and securities for his
own exclusive account." There is nothing therein to show that plaintiff and appellant has
regularly devoted all his time or the major portion thereof to the business of buying and selling
mining securities for his own account. On the contrary, it having been stipulated that he has been
continuously engaged in the embroidery business during the same time, it necessarily follows
that he has not and could not have devoted regularly all his time or a major portion thereof to the
buying and selling of mining securities.

Furthermore, from Exhibit A attached to the complaint and made a part of said stipulation of
facts, which represents plaintiff's purchases and sales of each class of stocks and securities as
well as the profits and losses resulting therefrom during the year 1939, it appears that he made
purchases and sales of securities only on several days of some months and nothing on others. As
shown in said exhibit, during the month of January, 1939, appellant purchased shares of stock of
different mining corporations on January 2, 3, 4, 6, 13, 19, 20, 25, 30, and sold some of them on
January 4, 10, 13 and 31. During February he made purchases on the dates 1, 8, 13, 14, 25, and
27; and sales on 6, 9, 10, 16, 22, and 30, and sold some on March 9 only. During April he made
two purchases on April 3 and 5, and one sale on April 4. During May he purchased mining
shares of stock on May 9, 10, 13, 19, 24, and 25; and sold some of them on May 9, 10, 12, 13,
and 31. During June appellant made purchases on 1, 3, 5, 8, 13, 15, and 17, and sales on 22, 23,
24, and 28. During July, purchases on 1, 3, 6, 19; and sales on July 24, 25, 26, and 27. During
August he purchased shares of stock on some mining corporations on 5,7, 16, and 18 and sold
shares of one mining corporation on August 10 only. During September appellant did not
purchase or sell any securities. During October he sold securities only on the 12th of said month,
and he made no purchase at all. And during November and December he did not purchase or sell
any.

Appellant contends that as from Exhibit A it appears that the mining securities were inventoried
in order to arrive at his profits and losses, they cannot be considered as capital assets, because,
according to section 34, the term capital assets does not include property which would properly
be included in the inventory. But it is to be observed that the law refers not to property merely
included, but to that which would be properly included in the inventory. Section 148 of the
Income Tax Regulations No. 2 of February 10, 1940 (39 Off. Gaz., 325), provides that "the
securities (to be) inventoried as here provided may include only those held for purposes of resale
and not for investment," and that "the taxpayers who buy and sell or hold securities for
investment or speculation, . . . are not dealers insecurities within the meaning of this rule." And
the General Counsel of the Federal Bureau of Internal Revenue, after quoting Article 105 of
United States Regulations 74 from which said section 148 of our Income Tax Regulations was
taken, said that a person not a dealer in securities is precluded from the use of inventories in
computing his net income."(C. B. X-2, p. 128, G. C. M., 9656.)

The lower court has not therefore erred in dismissing appellant's first cause of action, on the
ground that the losses sustained by appellant from the buying and selling of mining securities are
not losses incurred in business or trade but are capital losses from sales of capital assets, as
contended by appellee.

2. With regard to the second point, the lower court held that, as the new law does not provide that
the personal exemptions shall be allowed in the nature of a deduction from the net income, as
prescribed in the old law, and there is a distinction between exemption and deduction, the tax due
on said exemptions must be deducted from the tax due on the whole net income, instead of
deducting the total amount of the exemptions from the net income.

The argument of the appellee in support of the lower court's decision is that the omission in
section 23 of Act No. 466 of the phrase "in the nature of a deduction" found in section 7 of the
old law, shows that it was the intention of the National Assembly to adopt the innovation
proposed by the Tax Commission which prepared the draft of the new law, an innovation based
on what is known as the "Wisconsin Plan" now in operation in several American states. Under
said plan, the cumulative amount of the tax is fixed on any given amount of net income without
regard to the status of the taxpayer, and then this amount is reduced by the tax credit fixed in the
law according to the status of the taxpayer and the number of his dependents as follows: for
single individuals, there is allowed a tax credit of P10; for married persons or heads of family,
P30; and for each dependent below 21 years of age, P10.

Section 7 of the old law provided: "For the purpose of the normal tax only, there shall be allowed
as an exemption in the nature of a deduction from the amount of the net income . . ."; while
section 23 of the new law provides: "For the purpose of the tax provided for in this Title there
shall be allowed the following exemptions." Now, the question to be determined or answered is:
Does this change in the phraseology of the law show the intention of the National Assembly to
change the theory or policy of the old law so as to deduct now the tax on the personal and
additional exemptions from the tax fixed on the amount of the net income, instead of deducting
the amount of personal and additional exemptions from that of the net income, before
determining the tax due on the latter?

It is a well-settled rule of statutory construction that where a statue has been enacted which is
susceptible of several interpretations there is no better means for ascertaining the will and
intention of the legislature than that which is afforded by the history of the statue. Taking into
consideration the history of section 23 of the Commonwealth Act No. 466, the answer to the
above-propounded question must obviously be in the negative. Section 22 of the bill entitled "An
Act to revise, amend and codify the Internal Revenue Laws of the Philippines," prepared by the
Tax Commission and submitted to the National Assembly of the Philippines, in substitution of
section 7 of the old Income Tax Law, reads as follows:

SEC. 22. Amount of tax credit allowable to individuals.—There shall be allowed as a

credit in the nature of a deduction from the amount of the tax payable by each citizen or
resident of the Philippines under section 20:

(a) Tax credit of single individuals.—The sum of P10 if the person making the return is a
single person or a married person legally separated from his or her spouse.

(b) Tax credit of a married person or head of family.—The sum of P30 if the person
making the return is a married man with a wife not legally separated from him, or a
married woman with a husband not legally separated from her, or the head of the
family; Provided, That from the tax due on the aggregate income of both husband and
wife when not legally separated only one tax credit of P30 shall be deducted. For the
purpose of this section, the term "head of a family" includes an unmarried man or a
woman with one or both parents, or one or more brothers or sisters, or one or more
legitimate, recognized natural or adopted children dependent upon him or her for their
chief support where such brothers, sisters, or children are less than twenty-one years of
age.

(c) Additional tax credit for dependents.—The sum of P10 for each legitimate, recognized
natural, or adopted child wholly dependent upon the taxpayer, if such dependents are
under twenty-one years of age, or incapable of self-support because mentally or
physically defective. The additional tax credit under this paragraph shall be allowed only
if the person making the return is the head of the family.

But the National Assembly, instead of adopting or incorporating said proposed section 22 in the
National Internal Revenue Code, C. A. No. 466, copied substantially in section 23 of the latter
provision of section 7 of the old law relating to personal and additional exemptions, with the
only modification that the amount of personal exemption of single individuals has been reduced
from two thousand to one thousand pesos, and that of married persons or heads of family from
four thousand to two thousand five hundred pesos.
If it were the intention of the National Assembly to adopt the "Wisconsin plan" proposed by the
tax Commission, it would have adopted literally, or at least substantially, the provisions of said
section 22 as section 23 of Commonwealth Act No. 466, instead of substantially incorporating
section 7 of the old Income Tax Law as section 23 of the new, except the first paragraph thereof
which reads: "For the purpose of the normal tax only, there shall be allowed as an exemption in
the nature of a deduction from the amount of the net income." This was changed in said section
23, which provides: "For the purpose of the tax provided for in this Title, there shall be allowed
the following exemptions:" From the fact that the National Assembly discarded completely
section 22 of the bill drafted in accordance with the "Wisconsin Plan" and submitted by the Tax
Commission, it is to be presumed that the National Assembly of the Philippines did not intend to
introduce any substantial change in the old law in so far as the effect of personal and additional
exemptions on the income tax is concerned.

The mere fact that the phrase "in the nature of a deduction" found in section 7 of the old law was
omitted in section 23 of the new or National Internal Revenue Code did not and could not effect
any change in the law. It is evident that said phrase was added or inserted in said section 7 only
out of extreme caution, because, even without it, the exemption would have to be deducted from
the gross income in order to determine the net income subject to tax. Had the provision in the old
law been drafted in exactly the same term as that of said section 23, the same construction should
have been adopted. Because "Exception is an immunity or privilege; it is freedom from a charge
or burden to which others are subjected." (Florar vs. Sherifan, 137 Ind., 28; 36 N. E., 365, 369.)
If the amounts of personal and additional exemptions fixed in section 23 are exempt from
taxation, they should not be included as part of the net income, which is taxable. There is nothing
in said section 23 to justify the contention that the tax on personal exemptions (which are exempt
from taxation) should first be fixed, and then deducted from the tax on the net income.

The change of phraseology alone does not lead to the conclusion that it was the intention of the
lawmaker to amend or change the constructions of the old law as contended by the appellee. For
it is a well-established rule, recognized by the Supreme Court of Ohio in the case of Conger vs.
Barker's Adm'r (11 Ohio St., 1); "that in the revision of statutes, neither an alteration in
phraseology nor the omission or addition of words in the latter statute, shall be held, necessarily,
to alter the construction of the former act. And the court is only warranted in holding the
construction of a statute, when revised, to be changed, where the intent of the legislature to make
such change is clear, or the language used in the new act plainly requires such change of
construction. It should be remembered that condensation is a necessity in the work of
compilation or codification. Very frequently words which do not materially affect the sense will
be omitted from the statutes as incorporated in the code, or that same general idea will be
expressed in briefer phrases. No design of altering the law itself could rightly be predicated upon
such modifications of the language." (Emphasis ours.) (See Black on the construction and
Interpretation of the Laws, Second Edition, pp. 594, 595.)

Our Income Tax Law is patterned after the United States Revenue or Income Tax Laws. the
United States Revenue Laws of 1916, 1918, 1921, 1924, 1926, 1928 and 1932 considered the
personal and additional exemptions as credits against the net income for the purpose of the
normal tax; and subsequently, the United States Revenue Acts of 1934, 1936 and 1938 amended
the former acts by making said exemptions as credits against the net income for the purpose of
both the normal tax and surtax. Section 7 of our old Income Tax Law, instead of providing that
the personal and additional exemptions shall be allowed as a credit against the net income, as in
the United States Revenue Acts, prescribed that the amounts specified therein shall be allowed as
an exemption in a nature of deduction from the amount of the net income. Which has exactly the
same effect as the provision regarding personal and additional exemptions in the said United
States Revenue Acts. For, as it was explained in the Ways and Means Committee Report No.
764, 73d Congress, 2d Session, pages 6, 23:

To carry out the policy of retaining practically the same tax burden on ordinary income, it
is necessary in connection with the proposed plan to allow the personal exemption and
credits for dependents as an offset against surtax as well as normal tax. The personal
exemption and credits for defendants would appear to be in lieu of deductions for
 necessary living expenses. They may well apply to both taxes as do all other ordinary
deductions.

And Paul and Mertens, Law of Federal Taxation, Vol. 3, p. 509, state regarding the change in the
United States Revenue Act of 1934: "The practical effect of this statutory change is to convert
the personal exemption and credit for dependents into deductions . . ." (Emphasis ours.)

The lower court, therefore, erred in not declaring that personal and additional exemptions
claimed by appellant should be credited against or deducted from the net income, and
consequently in not sentencing appellee to refund to appellant the sum of P475.

In view of all the foregoing, the decision of the lower court is affirmed in so far as it dismisses
appellant's first cause of action, and is reversed in so far as it dismissed his second cause of
action. Appellee is sentenced to refund to appellant the sum of P475 claimed in the second cause
of action of the complaint. Without pronouncement as to costs. So ordered.

Moran, C.J., Pablo, Hilado, Bengzon, Briones, and Tuason, JJ., concur.

Separate Opinions

PARAS, J., concurring and dissenting:

I concur in the majority opinion in so far as it affirms the dismissal of appellant's first cause of
action, but I dissent from so much thereof as reverses the dismissal of appellant's second cause of
action.

The elimination from section 23 of the National Internal Revenue Code of the words "in the
nature of a deduction from the amount of the net income"(which appeared in section 7 of the old
Income Tax Law), could not have been effected without a purpose; and said purpose certainly is
not to retain the meaning and effect of the suppressed words. If the legislative department did not
intend to make an essential change, the logical and clear way of doing so was to recopy the old
provision. Said elimination was undoubtedly in answer to, and an acceptance of, the innovation
proposed by the Tax Commission, namely, that the amount payable under the present law should
be the difference between the tax due on the entire net income and that due on the exemptions,
thereby doing away with the former practice of allowing the exemptions to be deducted from the
net income and basing the tax on the difference. We cannot say that the failure of the law makers
to incorporate in the new Code the provision regarding tax credits allowable to individuals, as
prepared and submitted by the Tax Commission to the National Assembly in substitution of
section 7 of the old Income Tax Law, suggests a rejection of the new plan and the retention of
the old policy, since the desired aim had equally been accomplished by mere elimination of the
words above referred to. Indeed, at the rates fixed in section 21 of the new Code, the amounts of
personal and additional exemptions granted to individuals under section 23 are exactly the
amounts specified in the provision recommended by the Tax Commission, namely, P10 for
single individuals, P30 for married persons or heads of family, and P10 for each dependent.
Section 23 should thus be construed not as an original provision, but as one which is the result of
a revision.

The interpretation now pursued by the Government is further consistent with the circumstance
that the tax is levied upon the "entire net income" (section 21), which means "the gross income
computed under section 29, less the deductions allowed by section 30" (section 28). It is
significant that section 30 fails to make any reference to "personal exemptions." The explanation
contained in the Ways and Means Committee Report No. 764, 73rd Congress, 2nd Session, to
the effect that the "personal exemption and credits for dependents would appear to be in lieu of
deductions for necessary living expenses," cannot have controlling force because, in computing
the net income both under the new Code (section 31) and under the old Income Tax Law (section
5), no deduction is allowed in respect of living expenses.
Of course, neither an alteration in phraseology nor the omission or addition of words in a later
statute will necessarily alter the construction of the former act, but, in the present case, the
eliminated words were the very basis for the prior construction. The alternation here is one of
substance, and not merely of form.

Besides, the majority, by their position, are their position, are (unwittingly I hope) playing
favorite to the taxpayers in the upper brackets, — a situation which undoubtedly could not have
been intended by the legislators. The following remarks of counsel for the Government are in
point:

Lastly, the action of the appellee Collector, in allowing merely a tax credit upon the
amount of the personal exemptions, gives all taxpayers entitled to the same exemptions,
an equal privilege. The tax saving is the same for taxpayers having equal number of the
dependents, whether rich or poor, just as the amount of exemptions remains the same for
all taxpayers under analogous circumstances.

On the contrary, the method advocated by appellant (of deducting the exemption from the
total taxable income) benefits the rich taxpayers, rather than the poor ones. To convince
us of the fact, it is enough to compute the tax on an income lesser than appellant's; say of
P15,000.

Appellant's Method Appellees

Net income. . . . . . 15,000.00 Net income . . . . . . . P

15,000.00

Less exemption . . . 3,500.00 Taxable income . . . . P15,000.00

Taxable income . . . P11,500.00

Taxed as follows:

Income Rate Tax Income Tax

P2,000.00 1% P20.00 P2,000.00 Exempt.

2,000.00 2% 40.00 2,000.00 P 10.00 (1,500

exempt)

2,000.00 3% 60.00 2,000.00 60.00

4,000.00 4% 160.00 4,000.00 160.00

1,500.00 5% 75.00 5,000.00 250.00

P11,500.00 P355.00 P15,000.00 P480.00

A comparison of this computation with that of the tax on appellant's income, page 19 of
this brief, reveals that, in appellant's case, the deduction of the exemption results in a
saving of 15 per cent tax on P3,500 (P525) while in the case just discussed, where the
taxpayer's income is much less, the deduction method saves the taxpayer only 5 per cent
tax on P3,500 (P175), because in this case the highest bracket of the taxpayer's income is
only subject to 5 per cent. So that the appellant, with an income of P137,607.09,
economizes by the deduction three times more than the second taxpayer whose income is
merely P15,000. It requires little argument to show that a method of computing taxes
whereby the same exemption results in a higher benefit for the taxpayer with the bigger
income can neither be just nor equitable.
My vote is to affirm the judgment appealed from in toto.

PERFECTO, J., dissenting and concurring:

We dissent from the majority of affirming the decision of the lower court in so far as it dismisses
appellant's first cause of action.

Plaintiff "filed an income tax return for the calendar year 1939 showing that he made a net profit
amounting to P52,449.29 on embroidery business and P17,850 on dividends from various
corporations; and that from the purchase and sales of minings stock and securities he made a
profit of P10,741.30 and incurred losses in the amount of P78,049.10, thereby sustaining a net
loss of P67,307.80. . .

Defendant disallowed the deduction of the loss of P67,307.18, on the theory that the loss was
sustained by plaintiff from the sale of mining stocks and securities which are capital assets and
that the loss arising from the same should be allowed only to the extent of the gain from such
sales.

The question is whether the loss was incurred in trade and business.

"Business" is a very comprehensive term and embraces everything about which a person
can be employed. Black's Law Dictionary, 158, citing People vs. Commissioners of
Taxes (23 New York, 242, 244). "That which occupies the time, attention, and labor of
men for the purpose of a livelihood or profit." Bouvier's Law Dictionary, Vol. 1, p. 273.
Flint vs. Stone Tracy co. (1910), 220 U. S., 107 at 171; 31 Sup. Ct., 342; 55 Law. Ed.,
389; Ann. Cas. 1912-B, Law. 1312, cited with approval in Von Baumbach vs. Sargent
Land Company. (1916) 242 U. S., 503 at 515.

We do not have any doubt the plaintiff engaged in the business and trade of buying and selling
mining stocks and securities. We do not see any reason why the losses sustained by him in said
business should be disallowed in the computation for purposes of determining the income tax he
has to pay.

We are of opinion that the lower court's decision should be reversed and that, as to plaintiff's first
cause of action, defendant should be ordered to reimburse the plaintiff the amount of P9,008.14
paid by plaintiff to defendant under protest.

In regards to the second cause of action of plaintiff, we agree with the theory of the majority as
explained in the opinion, but we can not concur in the dispositive part thereof ordering the refund
of the sum of P475, in view of the conclusion we have arrived at regarding plaintiff's first cause
of action, it appearing that plaintiff only prays for the refund of P475 as an alternative in the
event his first cause of action is dismissed.

PADILLA, J., concurring and dissenting:

I dissent from the opinion of the majority on the second cause of action only.

It must be borne in mind that an exemption is neither an exclusion provided for in section 29 (b)
nor a deduction provided for in section 30, C. A. No. 466. Not being a deduction, the amount
constituting an exemption must not be excluded or deducted from the gross or net income.
Exemption means condonation, remission, or, as the trial court aptly calls, waiver of the tax by
the government. The amount of exemption being fixed (section 23, C. A. No. 466), the tax
condoned, remitted or waived must also fixed. The exemption provided for in Income Tax Law
is for personal, living, or family expenses of the taxpayer. It is the same amount regardless of the
amount of net income subject to tax. The law makes no distinction between small and large
incomes. The collector's computation accomplishes the aim of the law, for the tax on the amount
exempted would be the same for every net income, large or small, subject to tax. To illustrate, let
us take the case of two married persons with spouses not legally separated from them and each
with three dependent children, whose net incomes are P10,000 and P30,000, respectively. Under
the Collector's interpretation of the law, the computation would be, as follows:

P10,000.00 net income P30,000.00 net income P2,000.00 1% P20.00 P2,000.00 1% P20.00
2,000.00 2% 40.00 2,000.00 2% 40.00 2,000.00 3% 60.00 2,000.00 3% 60.00 4,000.00 4%
160.00 4,000.00 4% 160.00------------------------------ 10,000.00 5% 500.00P10,000.00 Tax
P220.00 10,000.00 6% 600.00 Exemption P60.00 ---------------------------------- P30,000.00 Tax
P1,320.00 Exemption P60.00.

Under appellant's interpretation of the law, the computation would be, as follows:.

P10,000.00 net income P30,000.00 net income 4,000.00 less exemption 4,000.00 less exemption-
--------- ---------- P6,000.00 taxable net P26,000.00 taxable net P2,000.00 1% P20.00 P2,000.00
1% P20.00 2,000.00 2% 40.00 2,000.00 2% 40.00 2,000.00 3% 60.00 2,000.00 3% 60.00---------
--------------------- 4,000.00 4% 160.00 P6,000.00 Tax P120.00 10,000.00 5% 500.00 6,000.00
6% 360.00 -------------------------------- P26,000.00 Tax P1,140.00.

or under appellant's other interpretation of the law, the computation would be, as follows:

P2,000.00 1% P20.00 P2,000.00 1% P20.00 2,000.00 2% 40.00 2,000.00 2% 40.00 2,000.00 3%

60.00 2,000.00 3% 60.00 4,000.00 4% 160.00 4,000.00 4% 160.00--------------------------------
10,000.00 5% 500.00P10,000.00 Tax P120.00 6,000.00 6% 360.00 Exemption P160.00 4,000.00
6% 240.00 --------------------------------------- P26,000.00 Tax P1,140.00 Exemption P240.00.

The result under appellant's computation is that a large net income would enjoy a bigger amount
of tax exemption than a small net income, when the law is clear that such exemption is of fixed
amount regardless of the amount of net income subject to tax.

It is not correct to say that the "Wisconsin Plan" referred to in the majority opinion was not
adopted. It was adopted not in form but in substance.

I am of the opinion that the judgment under review should be affirmed.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-30375 September 12, 1978

JOSE ESCRIBANO, petitioner,

vs.
HON. DAVID P. AVILA, as Presiding Judge of the Court of First Instance of Cotabato
(First Branch) and SALIPADA K. PENDATUN, respondents.

Jose W. Diokno for petitioner.

M. C. Sicat for private respondent.

AQUINO, J.:

This case is about the jurisdiction of the Court of First Instance to conduct the preliminary
investigation of a complaint for written defamation.

On September 25, 1968 Congressman Salipada K. Pendatun, the governor-elect of Cotabato,

filed directly with the Court of First Instance of that province (now North Cotabato) a complaint
for libel against Mayor Jose Escribano of Tacurong, Cotabato (now the province of Sultan
Kudarat). The complaint was subscribed and sworn to before respondent Judge David P. Avila. It
was supported by the affidavit of Acting Governor Simeon Datumanong.

In that complaint Escribano was charged with having said in a speech, which was broadcasted on
August 26, 1968 by a radio station at Cotabato City, that "Mr. Pendatun is the worst animal that
ever live (fixed) in this province" criminal Case No. 5283).

Escribano questioned Judge Avila's authority to conduct the preliminary investigation of the
offense. Judge Avila in his orders of March 5, 20 and 27, 1969 ruled that he had the power to
conduct the preliminary investigation. He received complainant's evidence.

On April 1, 1969 Escribano filed in this Court against Judge Avila and Pendatun the instant
special civil actions of certiorari and prohibition, praying that the said orders of Judge Avila be
set aside. The respondents were required to answer the petition. No restraining order was issued.

On April 18 Escribano filed a supplemental petition to annul Judge Avila's order of March 29,
1969. In that order he found that Pendatun's evidence had "established a probable cause to
believe that" libel by radio had been committed and that Escribano "probably committed the
same". Judge Avila ordered the arrest of Escribano, fixed the bail at three thousand pesos, and
referred the case to the city fiscal of Cotabato for the filing of the corresponding information. A
warrant of arrest was issued on March 31. Sometime before April 16 the city fiscal filed an
information for libel against Escribano.

On August 10, 1970 this Court issued a resolution restraining Judge Avila from proceeding with
the arraignment of Escribano.

The issue is whether the Court of First Instance of Cotabato is invested with authority to conduct
the preliminary investigation of the crime of libel committed by means of radio at Cotabato City
or whether that power is lodged exclusively in the city attorney of that city.
Petitioner Escribano, in support of his contention that the city fiscal of Cotabato is the only
functionary empowered to conduct the preliminary investigation of the libel charge, invokes the
following provisions of the charter of Cotabato City, Republic Act No. 2364, as amended by
Republic Act No. 3332:

SEC. 23. The city attorney — His compensation powers and duties. — The
provisions of Commonwealth Act Numbered Four hundred nine to the contrary
notwithstanding, the city shall have an attorney who shall be the chief legal
adviser of the city. ... The city attorney shall have the following powers and
duties:

xxx xxx xxx

(f) He shall investigate an charges of crimes, misdemeanors and violations of laws

and city ordinances and prepare the necessary informations or make the necessary
complaints against the persons accused. ...

(g) He shall have charge of the prosecution of all crimes, misdemeanors and
violations of laws and city ordinances triable in the Court of First Instance of
Cotabato, and the municipal court of the city, and shall discharge all the duties in
respect to Criminal prosecutions enjoined by law upon provincial fiscals.

He cites the ruling in Sayo. vs. Chief of Police 80 Phil. 859; Montelibano vs. Ferrer and Benares,
97 Phil. 228, and Guerrero vs. Ferrer, 106 Phil. 1163, that in chartered cities the city fiscal has
the exclusive authority to conduct preliminary investigations.

He also invokes the following provisions of article 360 of the Revised Penal Code, which were
inserted by Republic Act No. 4363, approved on June 19, 1965, and which do not empower the
Court of First Instance to conduct a preliminary investigation of written defamations:

Preliminary investigations of criminal actions for written defamations as provided

for in the chapter shall be conducted by the provincial or city fiscal of the
province or city, or by the municipal court of the city or capital of the province
where such actions may be instituted in accordance with the provisions of this
article.

On the other hand, complainant Pendatun and respondent Judge rely on section 13, Rule 112 of
the Rules of Court to support their view that the Court of First Instance of Cotabato could
conduct the preliminary investigation:

SEC. 13. Preliminary examination and investigation by the judge of the Court of
First Instance. — Upon complaint filed directly with the Court of First Instance,
without previous preliminary examination and investigation conducted by the of
the judge thereof shall either refer the complaint to the municipal judge referred to
in the second paragraph of section 2 hereof for preliminary examination and
investigation, or himself conduct both preliminary examination and investigation
simultaneously in the manner provided in the preceding sections, and should be
find reasonable ground to believe that the defendant has committed the offense
charged, he shall issue a warrant for his arrest, and thereafter refer the case to the
fiscal for the filing of the corresponding information.

Was it intended by Republic Act No. 4363, in specifying that the preliminary investigation of
criminal actions for written defamations may be conducted by the provincial or city fiscal of the
province or city, or the municipal court of the city or capital of the province, where the criminal
action may be filed to exclude the Court of First Instance from conducting such preliminary
investigation and to entrust that power exclusively to those fiscals and courts? (Libel by means
of radio is a written defamation under article 355 of the Revised Penal Code).
As admitted by the petitioner, the purpose of the amendment is to prevent the complainants in
written defamation cases from harassing the accused by means of out-of-town libel suits,
meaning complaints filed in remote municipal courts (Time, Inc. vs. Reyes, L-28882, May 31,
1971, 39 SCRA 303, 311; p. 11, Memorandum, p. 11 3, Rollo).

The rule is that in construing a statute the mischief intended to be removed or suppressed and the
causes which induced the enactment of a law are important factors to be considered in its
construction (2 Sutherland on Statutory Construction, 885886, cited in Philippine Sugar Centrals
Agency vs. Collector of Customs, 51 Phil. 131, 145).

Therefore, it is safe to conclude that the enumeration in the amendatory law of the public officers
and the courts that may conduct the preliminary investigation of complaints for written
defamation was designed to divest the ordinary municipal court of that power but not to deprive
the proper Court of First Instance of that same power.

Article 360 in its original form provided that the venue of the criminal and civil actions for
written defamations is the province wherein the libel was published, displayed or exhibited,
regardless of the place where the same was written, printed or composed. Article 360 originally
did not specify the public officers and the courts that may conduct the preliminary investigation
of complaints for libel.

Before article 360 was amended, the rule was that a criminal action for libel may be instituted in
any jurisdiction where the libelous article was published or circulated, irrespective of where it
was written or printed (People vs. Borja, 43 Phil. 618).

Under that rule, the criminal action is transitory and the injured party has a choice of venue.

Experience had shown that under that old rule the offended party could harass the accused in a
libel case by laying the venue Of the Criminal action in a remote or distant place.

Thus, in connection with an article published in the Daily Mirror and the Philippines Free Press,
Pio Pedrosa, Manuel V. Villareal and Joaquin Roces were charged with libel in the justice of the
peace court of San Fabian, Pangasinan (Amansec vs. De Guzman 93 Phil. 933). To forestall such
harassment, Republic Act No. 4363 laid down the following rules on the venue of the criminal
and civil actions in written defamations: *

1. General rule: The action may be filed in the Court of First Instance of the province or city
where the libelous article is printed and first published or where any of the offended parties
actually resides at the time of the commission of the offense.

2. If the offended party is a public officer with office in Manila at the time the offense was
committed, the venue is Manila or the city or province where the libelous article is printed and
first published.

3. Where an offended party is a public official with office outside of Manila, the venue is the
province or the city where he held office at the time of the commission of the offense or where
the libelous article is printed and first published.

4. If an offended party is a private person, the venue is his place of residence at the time of the
commission of the offense or where the libelous article is printed and first published.

The common feature of the foregoing rules is that whether the offended party is a public officer
or a private person, he has always the option to file the action in the Court of First Instance of the
province or city where the libelous article is printed or first published.

Congress did not confine the amendatory law to laying down the guidelines for the venue of
criminal and civil actions. Since, as already noted, its purpose is to minimize the filing in
municipal courts of out-of-town libel suit this the lawmaking body, in order to attain that
objective, deprived the ordinary municipal courts of the power to conduct. the preliminary
investigation of a criminal action for written defamation.

In other words, the amendment contains not only the rules limiting the venue of the criminal and
civil actions to the Court of First Instance of the province or city where the libelous matter is
printed and first published, or where the offended party held office or resided at the time the libel
was committed, but it also specifies that the preliminary investigation should be conducted by
the provincial or city fiscal of the province or city or by the municipal court of the city or capital
of the province where the action may be instituted. (See People and Navarro vs. Hechanova, L-
26459, November 29, 1973, 54 SCRA 101).

It should be repeated that the amendment, in specifying those who may conduct the preliminary
investigation, deprived the ordinary municipal court of that power in cases of written,
defamations. And it should be recalled that the power of the ordinary municipal court to conduct
such preliminary investigations under the old law facilitated the filing of libel cases in remote
municipal courts and the consequent harassment of the accused.

That purpose of the amendment has nothing to do with the power of the Court of First Instance to
conduct preliminary investigations in criminal cases cognizable by it. To retain that power of the
Court of First Instance would in a way be an implementation of the purpose of the amendment,
which is to prevent complainants from harassing and embarrassing the accused with libel suits in
distant municipalities.

Therefore, it can be stated without fear of successful contradiction that the lawmaking body, by
means of that amendment, never intended to take away the jurisdiction of the proper Court of
First Instance to conduct a preliminary investigation in libel cases. The amendment merely
sought to strip the ordinary municipal court (not the municipal court ee of the provincial capital
or the city court) of its power to hold a preliminary investigation of written defamations.

The fact that the Court of First Instance is not mentioned in Article 360 as a tribunal that may
conduct the preliminary investigation of libel cases would seem to suggest that it cannot conduct
such preliminary investigation, following the maxim inclusio unius est exclusio alterius (the
inclusion of one thing is the exclusion of another or the enumeration of particular things excludes
the Idea of something else not mentioned, applied in Acosta vs. Flor, 5 Phil. 18; De la Rosa vs.
Revita Santos, 10 Phil. 148, 149; Conde vs. Abaya, 13 Phil. 249; Tavora vs. Gavina, 79 Phil.
421, 435; In re Guzman, 73 Phil. 51; In re Estate of Enriquez and Reyes, 29 Phil. 167; Weigall
vs. Shuster, 11 Phil. 340, 357; Vega vs. Municipal Board of Iloilo 94 Phil. 949, 953; Gomez vs.
Ventura, 54 Phil. 726; Mendenilla vs. Onandia, 115 Phil. 534, 539; Canlas and Manila Pencil Co.
vs. Republic, 103 Phil. 712, 716; Lao Oh Kim vs. Reyes, 103 Phil. 1139).

Under that canon of legal hermeneutics, where a statute directs the performance of certain acts
by a particular person or class of persons, it implies that it shall not be done otherwise or by a
different person or class of persons (82 C.J.S. 667668).

That maxim is not a rule of law. It is just a tool of statutory construction or a means of
ascertaining the legislative intent. It is not of universal application and is not conclusive. It
cannot be used to defeat the plainly indicated purpose of the lawmaking body (82 C.J.S. 668).
The maxim is inapplicable if there is some special reason for mentioning one thing and none for
mentioning another which is otherwise within the statute, so that the absence of any mention of
such other will not exclude it (82 C.J.S. 670).

The maxim does not apply in case a statute appears upon its face to limit the operation of its
provisions to particular persons or things by enumerating them, but no reason exists why other
persons or things not so enumerated should not have been included, and manifest injustice win
follow by not so including them (Springer vs. Philippine Islands, 72 Law. ed. 845, 227 U.S 189;
People vs. Manahan, 115 Phil. 657,6681).
The maxim is no more than an auxiliary rule of interpretation to be ignored where other
circumstances indicate the enumeration was not intended to be exclusive" (Manabat vs. De
Aquino, 92 Phil. 1026, 1027).

The maxim cannot be applied in this case because, as shown above, the fact that the Court of
First Instance is not mention in the amendment, as being empowered to conduct a preliminary
investigation in cases of written defamation, has nothing to do with the purpose of the
amendment. It should be stressed that in construing a law, the court must look to the object to be
accomplished, the evils and mischief sought to be remedied, or the purpose to be subserved, and
it should give the law a reasonable or liberal construction which win best effect its purpose rather
than one which win defeat it (82 C.J.S. 593)

It is reasonable to surmise that the Court of First Instance was not mentioned due to
inadvertence. That oversight is not unusual since preliminary investigations are usually
conducted by municipal courts and fiscals. In practice, a preliminary investigation by the Court
of First Instance is the exception, not the general rule.

In this connection, it is pertinent to cite the recent ruling that the power of the Court of First
Instance to conduct a pre investigation is derived from the constitutional provision that "no
warrants shall issue but upon probable cause, to be determined by the judge after examination
under oath or affirmation of the complaint and the witness he may produce" (Sec. 1[3], Art. 111,
now Sec. 3, Art. IV, 1973 Constitution; Collector of Customs vs. Villaluz, L-34038, June
18,1976 and five other cases, 71 SCRA 356).

Implicit in that provision is the constitutional grant of power to the judge to hold a preliminary
examination and to issue warrants of arrest and search warrants. That which is plainly implied in
the language of a law is as much a part of it as that which is expressed (In re McCulloch Dick, 38
Phil 41, 45, 90). The term "judge" embraces a judge of the Court of First Instance. Its coverage is
not restricted to judges of inferior courts.

The silence of article 360 on the power of a judge of the Court of First Instance to conduct a p
investigation of criminal actions for written defamations does not preclude a judge of that court
from holding such investigation.

However, the exercise of that power is tied up with the rules on the venue of a criminal action for
written defamation. That power is lodged in the Court of First Instance of the city or province
where the libelous article was printed or first published or where the offended party actually
resided, or where the offended public official held office, at the time of the commission of the
offense.

Escribano's contention that in chartered cities the city fiscal has the exclusive authority to
conduct preliminary investigations is not correct. While section 23(f) of the Charter of Cotabato
City (Republic Act No. 2364) empowers its city attorney to "investigate all charges of crimes,
misdemeanors and violations of laws and city ordinances and prepare the necessary informations
or make the necessary complaints against the persons accused", that power is not exclusive.

Section 78 of the same charter provides that the municipal or city court of Catabato City "may
also conduct preliminary investigations for any offense, without regard to the limits of
punishments", a provision which is found in section 87 of the Judiciary Law and in section 2,
Rule 112 of the Rules of Court.

That same power is found in the last sentence of section 41 of Republic Act No. 409, the Revised
Charter of Manila, which took effect on June 18, 1949 or after Sayo vs. Chief of Police of
Manila, 80 Phil. 859 was decided.

But that provision is not found in Commonwealth Act No. 326, the charter of Bacolod City,
under which Montelibano vs. Ferrer. 97 Phil. 228 and Guerrero vs. Ferrer, 106 Phil. 1163 were
decided, nor is it found in the old Manila Charter contained in the Revised Administrative Code.
Hence, in the Sayo, Montelibano and Guerrero cases, it was held that the city court could not
conduct pre investigations. (See Callanta vs. Villanueva, L-24646 and 24674, June 20, 1977, 77
SCRA 377).

WHEREFORE, the petition is dismissed with costs against the petitioner.

SO ORDERED.

Castro, C.J., Antonio, Muñoz Palma, Santos, Fernandez and Guerrero, JJ., concur.

Separate Opinions

TEEHANKEE, J., concurring:

I concur in the dismissal of the petition. The mere non-mention of judges of the Court of First
Instance as among those authorized to conduct preliminary investigations of criminal actions for
written defamation under R.A. 4363 (which amended Art. 360 of the Revised Penal Code So as
to provide a more restricted venue for criminal and civil actions for damages in cases of written
defamation under said Code) cannot be construed to mean a withdrawal of the constitutional and
statutory power of the Court of First Instance to conduct preliminary investigations.

As the Court held in Collector of Customs vs. Villaluz 1 "the power of the city prosecutors to
conduct preliminary examination and investigation (minus the authority to issue warrants of
arrest or search warrant) is purely statutory. On the other hand, the judge derives his authority
not only from the Rules of Court, but also and originally — from the fundamental law to which
all other laws are subordinate. If an objection must be raised, it should be against the authority of
the fiscal to exercise such power of preliminary investigation, which, as has been stated, is
merely statutory. No less than the Constitution confers upon the judge the power to conduct such
examination and investigation."

Aside from the provision of Rule 112, section 13 of the Rules of Court, the statutory power of
judges of the Court of First Instance to conduct preliminary investigations is recognized and
reaffirmed in Republic Act 5180, "An Act prescribing a uniform system of preliminary
investigation by provincial and city fiscals and their assistants, and by state attorneys or their
assistants' ... "except when an investigation has been conducted by a judge of first instance, city
or municipal judge or other officer in accordance with law and the Rules of Court of the
Philippines."

While the aforesaid amendatory R.A. 4363 was enacted to minimize the filing in municipal
courts of out-of-town libel suits expressly for the purpose of preventing harassment of the
alleged offenders in written defamation cases through the filing of such suits in remote towns,
the said Act did not in law remove the general power of the judges of such ordinary municipal
courts of their power derived from the Constitution, as well as from the statute and Rules of
Court, to conduct preliminary investigations. Rather, what was effected was a withdrawal of the
venue and jurisdiction over such cases from the ordinary municipal courts which was a valid
exercise of the power of Congress to define and allocate the jurisdiction of the various lower
courts.

The main opinion mentions in passing that "in the Sayo 2 Montelibano 3 and Guerrero 4 cases it
was held that the city court could not conduct preliminary investigations," 5 thus giving the
impression that the ruling in said cases that under the charters of the cities of Manila and
Bacolod the power to conduct preliminary investigations is exclusively lodged in the city fiscal is
still in force. I hold the view that the city charter provisions of Manila and Bacolod (as well as of
Quezon City 6, and Cebu 7 for that matter) do not grant the city fiscal and his assistants sole
authority to conduct investigation for offenses committed within their respective cities to the
exclusion of the regular courts therein. Such city charter provisions, to my mind, merely
constitute the basis of the city fiscal authority to concoct preliminary investigations but do not
serve to withdraw from the Courts of First Instance as well as from the city courts therein their
power to conduct preliminary examinations and investigations.

I believe that this was the thrust of the Court's holding in Collector of Customs vs. Villaluz,
supra, that

It is true that this COURT held expressly and impliedly that under the charters of
the cities of Manila, Bacolod and Cebu, the power to conduct preliminary
investigation is exclusively lodged in the city prosecutor (Sayo vs. Chief of
Police, 80 Phil 859, 868-869, May 12, 1948; Espiritu vs. De la Rosa, 45 O.G 196;
Montelibano vs. Ferrer, 97 Phil. 228, June 23, 1955; and Balite vs. People, 18
SCRA 280, 285-286, Sept. 30, 1966). But the charters of the cities of Manila,
Bacolod and Cebu do not contain any provision making such grant of power to
city prosecutors exclusive of the courts (Kapunan, Criminal Procedure, 3rd
Edition, 1960), which cannot be deprived of such authority to conduct preliminary
examination because said prerogative Of the courts emanates from
the Constitution itself. Unless the Constitution is amended the judge cannot be
divested of such a power, which is an essential element of the cardinal right of an
individual against unreasonable searches and seizures. If the present city charters
conferred on city fiscals or city prosecutors the power to issue warrants of arrest,
it would be an unconstitutional grant of power under the 1935 Constitution. As
heretofore intimated, the present practice or rule of court authorizing the judge to
issue warrants of arrest based on the preliminary investigation conducted by the
city fiscal seems to violate the 1935 Constitution, which requires the judge
himself to conduct the preliminary examination. Neither the judge nor the law can
delegate such an authority to another public officer without trenching upon this
constitutional guarantee against unreasonable searches and seizures.

The theory that Courts of First Instance and Circuit Criminal Courts Judges
cannot exercise the power of preliminary examination and investigation, and that
as a necessary consequence, they cannot also issue warrants of arrest, obviously
collides with the 1935 and 1973 Constitutions.

Moreover, the theory tolerates an unthinkable — because anomalous — situation

wherein the Court of First Instance and the Circuit Criminal Court must wait for
prosecutors and courts inferior to them to conduct the preliminary examination
and/or to issue the needed warrants of arrest before they could effectively exercise
their power to try and decide the cases failing under their respective jurisdiction.
This situation would make the Courts of First Instance and Circuit Criminal
Courts totally dependent upon state prosecutors and municipal courts, which are
inferior to them, for their proper functioning. The possibility that the
administration of criminal justice might stand still will not be very remote. 8

Consequently, the rulings in the cited cases of Sayo, Montelibano, Guerrero and other cases
must be deemed to have been abandoned and it must be held now that as a general rule and
without exception, Courts of First Instance and city courts, regardless of the provisions in their
charters which grant the city fiscal authority to also conduct preliminary investigations, must be
deemed to have retained the power Of preliminary examination and investigation, which cannot
be taken from them by mere statute.
This is as a matter of strict power, since the function of the courts as we stress in Villaluz, supra,
is the hearing and determination of cases in litigations before them. Hence, as therein stated,
pursuant to the Court's constitutional power of administrative supervision over all courts 9,
"Circuit C Judges [as well as Court of First Instance and City Court Judges], therefore, should
not encumber themselves with the pre examination and investigation of criminal complaints,
which they should refer to the ... provincial or city fiscal who in turn can utilize the assistance of
the state prosecutor to conduct such preliminary examination and investigation." 10

BARREDO, J., dissenting:

Dissents on the ground that it is my firm con. conviction. that courts of first instance have no
power to conduct preliminary investigation as I have explained in my separate opinion in
Villaluz, 71 SCRA 412-425.

Concepcion Jr., J., took no part.

FERNANDO, J., dissenting:

It is with regret that I find myself unable to join the scholarly and exhaustive opinion of Justice
Aquino. He is of the view that "the recent ruling that the power 6f the Court of First Instance to
conduct a preliminary investigation is derived from the constitutional provision that 'no warrants
shall issue but upon probable cause, to be determined by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce' (Sec. 113t Art. 111, now
Sec. 3, Art. IV, 1973 Constitution; Collector of Customs v. Villaluz, L-34038, June 18, 1976 and
five other 71 SCRA 356)." My concurrence in Villaluz 1 did not go that far.

I explained why: "At that, there is still need, it seems to me, for a few words not only to set forth
the extent of my agreement with my brethren but also to indicate what for me are the precise
limits of our holding. The full and exhaustive treatment of the specific issue dealing with the
power of the circuit c to conduct p examination, with historical and textual allusions to the
previous judicial pronouncements and comparable statutory provisions, certainly a virtue to be
commended, may for those not sufficiently discerning, yield implications which, for me, go
further than is intended by us. It is my understanding then that the decision reached is at most an
affirmation that the present Constitution, as did the 1935 Constitution, confers the power to
conduct preliminary examination preparatory to issuing a warrant of arrest, to a circuit criminal
court judge. Even then, however, he should for sound policy reasons curb any eagerness or
propensity to make use of such competence." 2

The next paragraph of my concurrence deals with the matter further: "To repeat, it is solely the
first stage in the criminal process that may lead to the apprehension of the accused that has been
passed upon by this Court. It has not considered the second stage, that of preliminary
investigation proper, one of equal significance. As far back as 1910, its importance was stressed
in United States v. Grant and Kennedy. Thus: 'The object or purpose of a preliminary
investigation, or a previous inquiry of some kind, before an accused person is placed upon trial,
is to secure the innocent against hasty, malicious, and oppressive prosecutions, and to protect
him from an open and public accusation of crime, from the trouble, expense, and anxiety of a
public trial, and also to protect State from useless and expensive trials.' It is of the essence then
that the accused should be heard. There are overtones in the opinion of the Court susceptible to
being misinterpreted in this regard, if it be assumed that upon the termination of the preliminary
examination the arraignment and trial could then proceed. I would dissociate myself from such a
view. I am gratified therefore that it is made explicit therein that our ruling is limited to the
power of a judge under the Circuit Criminal Court Act to conduct a preliminary investigation, it
is my understanding that the question has been left open."3

With the categorical pronouncement in the opinion of the Court that Villaluz is to be interpreted
as recognizing the power of the Court of First Instance to conduct a pre investigation by virtue of
the constitutional provision cited, which for me, applied only to pre examinations, I have no
choice but to dissent. It is my considered view that in the absence of a statutory grant, a court of
first instance cannot exercise the power of holding a pre investigation, as it more of the
prosecuting rather than the judicial function unlike a preliminary examination, which as the first
Step in the deprivation of one's liberty, is deemed best left in judicial hands. 4

Separate Opinions

TEEHANKEE, J., concurring:

I concur in the dismissal of the petition. The mere non-mention of judges of the Court of First
Instance as among those authorized to conduct preliminary investigations of criminal actions for
written defamation under R.A. 4363 (which amended Art. 360 of the Revised Penal Code So as
to provide a more restricted venue for criminal and civil actions for damages in cases of written
defamation under said Code) cannot be construed to mean a withdrawal of the constitutional and
statutory power of the Court of First Instance to conduct preliminary investigations.

As the Court held in Collector of Customs vs. Villaluz 1 "the power of the city prosecutors to
conduct preliminary examination and investigation (minus the authority to issue warrants of
arrest or search warrant) is purely statutory. On the other hand, the judge derives his authority
not only from the Rules of Court, but also and originally — from the fundamental law to which
all other laws are subordinate. If an objection must be raised, it should be against the authority of
the fiscal to exercise such power of preliminary investigation, which, as has been stated, is
merely statutory. No less than the Constitution confers upon the judge the power to conduct such
examination and investigation."

Aside from the provision of Rule 112, section 13 of the Rules of Court, the statutory power of
judges of the Court of First Instance to conduct preliminary investigations is recognized and
reaffirmed in Republic Act 5180, "An Act prescribing a uniform system of preliminary
investigation by provincial and city fiscals and their assistants, and by state attorneys or their
assistants' ... "except when an investigation has been conducted by a judge of first instance, city
or municipal judge or other officer in accordance with law and the Rules of Court of the
Philippines."

While the aforesaid amendatory R.A. 4363 was enacted to minimize the filing in municipal
courts of out-of-town libel suits expressly for the purpose of preventing harassment of the
alleged offenders in written defamation cases through the filing of such suits in remote towns,
the said Act did not in law remove the general power of the judges of such ordinary municipal
courts of their power derived from the Constitution, as well as from the statute and Rules of
Court, to conduct preliminary investigations. Rather, what was effected was a withdrawal of the
venue and jurisdiction over such cases from the ordinary municipal courts which was a valid
exercise of the power of Congress to define and allocate the jurisdiction of the various lower
courts.

The main opinion mentions in passing that "in the Sayo 2 Montelibano 3 and Guerrero 4 cases it
was held that the city court could not conduct preliminary investigations," 5 thus giving the
impression that the ruling in said cases that under the charters of the cities of Manila and
Bacolod the power to conduct preliminary investigations is exclusively lodged in the city fiscal is
still in force. I hold the view that the city charter provisions of Manila and Bacolod (as well as of
Quezon City 6, and Cebu 7 for that matter) do not grant the city fiscal and his assistants sole
authority to conduct investigation for offenses committed within their respective cities to the
exclusion of the regular courts therein. Such city charter provisions, to my mind, merely
constitute the basis of the city fiscal authority to concoct preliminary investigations but do not
serve to withdraw from the Courts of First Instance as well as from the city courts therein their
power to conduct preliminary examinations and investigations.
I believe that this was the thrust of the Court's holding in Collector of Customs vs. Villaluz,
supra, that

It is true that this COURT held expressly and impliedly that under the charters of
the cities of Manila, Bacolod and Cebu, the power to conduct preliminary
investigation is exclusively lodged in the city prosecutor (Sayo vs. Chief of
Police, 80 Phil 859, 868-869, May 12, 1948; Espiritu vs. De la Rosa, 45 O.G 196;
Montelibano vs. Ferrer, 97 Phil. 228, June 23, 1955; and Balite vs. People, 18
SCRA 280, 285-286, Sept. 30, 1966). But the charters of the cities of Manila,
Bacolod and Cebu do not contain any provision making such grant of power to
city prosecutors exclusive of the courts (Kapunan, Criminal Procedure, 3rd
Edition, 1960), which cannot be deprived of such authority to conduct preliminary
examination because said prerogative Of the courts emanates from
the Constitution itself. Unless the Constitution is amended the judge cannot be
divested of such a power, which is an essential element of the cardinal right of an
individual against unreasonable searches and seizures. If the present city charters
conferred on city fiscals or city prosecutors the power to issue warrants of arrest,
it would be an unconstitutional grant of power under the 1935 Constitution. As
heretofore intimated, the present practice or rule of court authorizing the judge to
issue warrants of arrest based on the preliminary investigation conducted by the
city fiscal seems to violate the 1935 Constitution, which requires the judge
himself to conduct the preliminary examination. Neither the judge nor the law can
delegate such an authority to another public officer without trenching upon this
constitutional guarantee against unreasonable searches and seizures.

The theory that Courts of First Instance and Circuit Criminal Courts Judges
cannot exercise the power of preliminary examination and investigation, and that
as a necessary consequence, they cannot also issue warrants of arrest, obviously
collides with the 1935 and 1973 Constitutions.

Moreover, the theory tolerates an unthinkable — because anomalous — situation

wherein the Court of First Instance and the Circuit Criminal Court must wait for
prosecutors and courts inferior to them to conduct the preliminary examination
and/or to issue the needed warrants of arrest before they could effectively exercise
their power to try and decide the cases failing under their respective jurisdiction.
This situation would make the Courts of First Instance and Circuit Criminal
Courts totally dependent upon state prosecutors and municipal courts, which are
inferior to them, for their proper functioning. The possibility that the
administration of criminal justice might stand still will not be very remote. 8

Consequently, the rulings in the cited cases of Sayo, Montelibano, Guerrero and other cases
must be deemed to have been abandoned and it must be held now that as a general rule and
without exception, Courts of First Instance and city courts, regardless of the provisions in their
charters which grant the city fiscal authority to also conduct preliminary investigations, must be
deemed to have retained the power Of preliminary examination and investigation, which cannot
be taken from them by mere statute.

This is as a matter of strict power, since the function of the courts as we stress in Villaluz, supra,
is the hearing and determination of cases in litigations before them. Hence, as therein stated,
pursuant to the Court's constitutional power of administrative supervision over all courts 9,
"Circuit C Judges [as well as Court of First Instance and City Court Judges], therefore, should
not encumber themselves with the pre examination and investigation of criminal complaints,
which they should refer to the ... provincial or city fiscal who in turn can utilize the assistance of
the state prosecutor to conduct such preliminary examination and investigation." 10

BARREDO, J., dissenting:

Dissents on the ground that it is my firm con. conviction. that courts of first instance have no
power to conduct preliminary investigation as I have explained in my separate opinion in
Villaluz, 71 SCRA 412-425.

Concepcion Jr., J., took no part.

FERNANDO, J., dissenting:

It is with regret that I find myself unable to join the scholarly and exhaustive opinion of Justice
Aquino. He is of the view that "the recent ruling that the power 6f the Court of First Instance to
conduct a preliminary investigation is derived from the constitutional provision that 'no warrants
shall issue but upon probable cause, to be determined by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce' (Sec. 113t Art. 111, now
Sec. 3, Art. IV, 1973 Constitution; Collector of Customs v. Villaluz, L-34038, June 18, 1976 and
five other 71 SCRA 356)." My concurrence in Villaluz 1 did not go that far.

I explained why: "At that, there is still need, it seems to me, for a few words not only to set forth
the extent of my agreement with my brethren but also to indicate what for me are the precise
limits of our holding. The full and exhaustive treatment of the specific issue dealing with the
power of the circuit c to conduct p examination, with historical and textual allusions to the
previous judicial pronouncements and comparable statutory provisions, certainly a virtue to be
commended, may for those not sufficiently discerning, yield implications which, for me, go
further than is intended by us. It is my understanding then that the decision reached is at most an
affirmation that the present Constitution, as did the 1935 Constitution, confers the power to
conduct preliminary examination preparatory to issuing a warrant of arrest, to a circuit criminal
court judge. Even then, however, he should for sound policy reasons curb any eagerness or
propensity to make use of such competence." 2

The next paragraph of my concurrence deals with the matter further: "To repeat, it is solely the
first stage in the criminal process that may lead to the apprehension of the accused that has been
passed upon by this Court. It has not considered the second stage, that of preliminary
investigation proper, one of equal significance. As far back as 1910, its importance was stressed
in United States v. Grant and Kennedy. Thus: 'The object or purpose of a preliminary
investigation, or a previous inquiry of some kind, before an accused person is placed upon trial,
is to secure the innocent against hasty, malicious, and oppressive prosecutions, and to protect
him from an open and public accusation of crime, from the trouble, expense, and anxiety of a
public trial, and also to protect State from useless and expensive trials.' It is of the essence then
that the accused should be heard. There are overtones in the opinion of the Court susceptible to
being misinterpreted in this regard, if it be assumed that upon the termination of the preliminary
examination the arraignment and trial could then proceed. I would dissociate myself from such a
view. I am gratified therefore that it is made explicit therein that our ruling is limited to the
power of a judge under the Circuit Criminal Court Act to conduct a preliminary investigation, it
is my understanding that the question has been left open."3

With the categorical pronouncement in the opinion of the Court that Villaluz is to be interpreted
as recognizing the power of the Court of First Instance to conduct a pre investigation by virtue of
the constitutional provision cited, which for me, applied only to pre examinations, I have no
choice but to dissent. It is my considered view that in the absence of a statutory grant, a court of
first instance cannot exercise the power of holding a pre investigation, as it more of the
prosecuting rather than the judicial function unlike a preliminary examination, which as the first
Step in the deprivation of one's liberty, is deemed best left in judicial hands. 4

Footnotes

* ART. 360. Persons responsible — ...

xxx xxx xxx
The criminal and civil action for damages in cases of written defamations as
provided for in this chapter, shall be filed simultaneously or separately with the
court of first instance of the province or city where the libelous article is painted
and first published or where any of the offended parties actually resides at the
time of the commission of the offense:

Provided however, That where one of the offended parties is a public officer
whose office is in the City of Manila at the time of the commission of the offense,
the action shall be filed in the Court of First Instance of the City of Manila or of
the city or province where the libelous article is printed and first publish and in
case such public officer does not hold office in the City of Manila the action shall
be filed in the Court of First Instance of the province or city where he held office
at the time of the commission of the offense or where the libelous article is
printed and first published and in case one of the offended parties is a private
individual, the action shall be filed in the Court of First Instance of the province
or city where he actually resides at the time of the commission of the offense or
where the libelous matter is printed and first published:

Provided further, That the civil action shall be filed in the same court where the
action is filed and vice versa:

Prove furthermore, That the court where the action or civil action for damages is
first filed shall acquire jurisdiction to the exclusion of other courts:

And provided, finally, That this amendment shall not apply to cases of written
defamations, the civil and for criminal actions to which have been filed in court at
the time of this law."

EXPLANARY NOTE

For the Bill Which Became Republic Act No. 4363.

The accompanying measure proposes to amend Article 360 of the Revised Penal
Code, as amended by Republic Act No. 1289.

This Article provides that the criminal and civil action for damages in cases of
written defamation shall be filed simultaneously or, separately with the court of
first instance of the province or city where any of the accused or any of the
offended parties resides at the time of the commission of the offense; and that
where the libel is published, circulated displayed or exhibited in a province or city
wherein rather the offender nor, the offended party resides, the civil and c actions
may be brought in the court of first instance thereof

Under the present law, an alleged offender can be easily subjected to hardships,
inconveniences and harassments because the criminal complaint may be filed in a
very remote place so long as there is proper venue. This provision is wholly
responsible for many out-of-town libel suits. The attached bill proposes to
minimize or limit the filing of (out-of-town libel suits by providing that the
complaint may be filed only in the proper court of the province or city where the
libelous article is printed and first published

Furthermore, this bill seeks to prove the venue for the complaint in cases of
written defamations where one of the offended parties is a public officer. This
proposal is very necessary in the interest of public service.

While the present law provides that the criminal complaint for written
defamations maybe filed with the proper court where the accused or the offended
party resides at the time of the commission of the offense, the term 'residence' is
vague in the sense that it will refer to legal residence' or the place where the
person actually lives. This term is clarified in the proposed bill as referring to
physical or actual residence. The law should be clear on this point to avoid delays
in its enforcement or implementation arising from certain technicalities.

Consistent with the purpose of preventing out-of town libel suits, this bill also
proposes to vest only certain officers, judicial or otherwise, with the power of
conducting preliminary investigations in complaints for defamation. Like venue,
this proposal will prevent the filing of criminal complaints for defamation in far-
flung municipalities which are practically inaccessible to the accused.

Obscurities in the law should be removed, more particularly in penal laws where
the liberty of an individual is always involved. A defective law which may cause
undue hardships for persons against whom it is enforced should be corrected
immediately. This is the case of our libel law. It has been resorted to most often to
harass certain individuals and this harassment occurs because of the defects in the
law.

In view of the foregoing, approval of this bill is earnestly requested.

(Congressional Record dated May 20,1965, pp. 424- 425).

Fernando, J., concurring

1 Collector of Customs v. Villaluz, L-34038, June 18, 1976, 71 SCRA 356.

2 Ibid, 402.

3 Ibid, 402-403.

4 Entertaining as I do such a belief, I am not among those who are pleased with
the grant of such power not only "to the judge" but also to "such other responsible
officer as may be authorized by law, ...." (Cf. Article IV, Section 3 of the present
Constitution). It goes without saying of course that the Constitution having
spoken, it is for the judiciary to obey.

Teehankee, J., concurring

1 71 SCRA 356, 385-386 (1976), per Makasiar, J.

2 Sayo vs. Chief of Police, 80 Phil 859 (1948).

3 Montelibano vs. Ferrer, 97 Phil 228 (1955).

4 Guerrero vs. Ferrer, 106 Phil 1163 (1959).

5 At page 12.

6 See People vs. Hechanova, 54 SCRA 101 (1973).

7 See Balite vs. People, 18 SCRA 280 (1966).

8 At pages 386-387; emphasis supplied.

9 Article X, section 6, 1973 constitution.

10 71 SCRA 400; notes in brackets supplied.

 ESCRIBANO V. AVILA
G.R. NO. L-30375, SEP. 12, 1978

FACTS:
On September 25, 1968 Congressman Salipada K. Pendatun, the governor-elect of Cotabato,
filed directly with the Court of First Instance of that province a complaint for libel against Mayor
Jose Escribano of Tacurong, Cotabato. In that complaint Escribano was charged with having said
in a speech, which was broadcasted on a radio station, that "Mr. Pendatun is the worst animal
that ever live in this province.” Escribano questioned Judge Avila's authority to conduct the
preliminary investigation of the offense. Judge Avila in his orders of March 5, 20 and 27, 1969
ruled that he had the power to conduct the preliminary investigation. On April 1, 1969 Escribano
filed in this Court against Judge Avila and Pendatun the instant special civil actions of certiorari
and prohibition, praying that the said orders of Judge Avila be set aside. On April 18 Escribano
filed a supplemental petition to annul Judge Avila's order of March 29, 1969. In that order he
found that Pendatun's evidence had "established a probable cause to believe that" libel by radio
had been committed and that Escribano "probably committed the same". The city fiscal filed an
information for libel against Escribano. Petitioner invokes the provisions of article 360 of the
Revised Penal Code, which were inserted by Republic Act No. 4363, which do not empower the
Court of First Instance to conduct a preliminary investigation of written defamations.
ISSUE:
Whether or not the Court of First Instance of Cotabato is invested with authority to conduct the
preliminary investigation of the crime of libel committed by means of radio at Cotabato City or
whether that power is lodged exclusively in the city attorney of that city.
HELD:
Yes. The lawmaking body, by means of that amendment of Art. 360, never intended to take away
the jurisdiction of the proper Court of First Instance to conduct a preliminary investigation in
libel cases. The amendment merely sought to strip the ordinary municipal court of its power to
hold a preliminary investigation of written defamations. The fact that the Court of First Instance
is not mentioned in Article 360 as a tribunal that may conduct the preliminary investigation of
libel cases would seem to suggest that it cannot conduct such preliminary investigation,
following the maxim inclusio unius est exclusio alterius (the inclusion of one thing is the
exclusion of another or the enumeration of particular things excludes the Idea of something else
not mentioned.)
However, the maxim inclusio unius est exclusio alterius cannot be applied in this case because,
as shown above, the fact that the Court of First Instance is not mention in the amendment, as
being empowered to conduct a preliminary investigation in cases of written defamation, has
nothing to do with the purpose of the amendment. It should be stressed that in construing a law,
the court must look to the object to be accomplished, the evils and mischief sought to be
remedied, or the purpose to be subserved, and it should give the law a reasonable or liberal
construction which win best effect its purpose rather than one which win defeat it. The silence of
article 360 on the power of a judge of the Court of First Instance to conduct an investigation of
criminal actions for written defamations does not preclude a judge of that court from holding
such investigation.
 SECOND DIVISION

[G.R. No. L-63277. November 29, 1983.]

PETRA VDA. DE BORROMEO, Petitioner, v. HON. JULIAN B. POGOY,

Municipality/City Trial Court of Cebu City, and ATTY. RICARDO REYES, Respondents.

Antonio T. Uy for Petitioner.

Numeriano G. Estenzo for Respondents.

SYLLABUS
1. CIVIL LAW; ACTIONS FOR FORCIBLE ENTRY AND DETAINER; PRESCRIPTIVE
PERIOD; ACTION NOT BARRED IN THE CASE AT BAR. — Under Article 1147 of the
Civil Code, the period for filing actions for forcible entry and detainer is one year, and this
period is counted from demand to vacate the premises. (Desbarat v. Vda. de Laureano, 18 SCRA
116, Calubayan v. Pascual, 21 SCRA 146, Development Bank of the Philippines v. Canonoy, 35
SCRA 197) In the case at bar, the letter-demand was dated August 28, 1982, while the complaint
for ejectment was filed in court on September 16, 1982. Between these two dates, less than a
month had elapsed, thereby leaving at least eleven (11) full months of the prescriptive period
provided for in Article 1147 of the Civil Code. Under the procedure outlined in Section 4 of PD
1508, the time needed for the conciliation proceeding before the Barangay Chairman and the
Pangkat should take no more than 60 days. Giving private respondent nine (9) months-ample
time indeed- within which to bring his case before the proper court should conciliation efforts
fail. Thus, it cannot be truthfully asserted, as private respondent would want Us to believe, that
his case would be barred by the Statute of Limitations if he had to course his action to the
Barangay Lupon.

2. REMEDIAL LAW; SECTION 4 (A) OF P.D. No. 1508; CONSTRUED. — Under Section
4(a) of PD 1508, referral of a dispute to the Barangay Lupon is required only where the parties
thereto are "individuals." An "individual" means "a single human being as contrasted with a
social group or institution." Obviously, the law applies only to cases involving natural persons,
and not where any of the parties is a juridical person such as a corporation, partnership,
corporation sole, testate or intestate, estate, etc.

3. ID.; JURIDICAL PERSON; REAL PARTY IN INTEREST; REFERRAL TO BARANGAY

LUPON, NOT REQUIRED. — In Civil Case No. R-239l5, plaintiff Ricardo Reyes is a mere
nominal party who is suing in behalf of the Intestate Estate of Vito Borromeo. while it is true that
Section 3, Rule 3 of the Rules of Court allows the administrator of an estate to sue or be sued
without joining the party for whose benefit the action is presented or defended, it is indisputable
that the real party in interest in Civil Case No. R-23915 is the intestate estate under
administration. Since the said estate is a juridical person (Limjoco v. Intestate of Fragante, 80
Phil. 776) plaintiff administrator may file the complaint directly in court, without the same being
coursed to the Barangay Lupon for arbitration.
DECISION
ESCOLIN, J.:

Petitioner herein seeks to stop respondent Judge Julian B. Pogoy of the Municipal Trial Court of
Cebu City from taking cognizance of an ejectment suit for failure of the plaintiff to refer the
dispute to the Barangay Lupon for conciliation.

The intestate estate of the late Vito Borromeo is the owner of a building bearing the deceased’s
name, located at F. Ramos St., Cebu City. Said building has been leased and occupied by
petitioner Petra Vda. de Borromeo at a monthly rental of P500.00 payable in advance within the
first five days of the month.

On August 28, 1982, private respondent Atty. Ricardo Reyes, administrator of the estate and a
resident of Cebu City, served upon petitioner a letter demanding that she pay the overdue rentals
corresponding to the period from March to September 1982, and thereafter to vacate the
premises. As petitioner failed to do so, Atty. Reyes instituted on September 16, 1982 an
ejectment case against the former in the Municipal Trial Court of Cebu City. The complaint was
docketed as Civil Case No. R-23915 and assigned to the sala of respondent judge.

On November 12, 1982, petitioner moved to dismiss the case, advancing, among others, the want
of jurisdiction of the trial court. Pointing out that the parties are residents of the same city, as
alleged in the complaint, petitioner contended that the court could not exercise jurisdiction over
the case for failure of respondent Atty. Reyes to refer the dispute to the Barangay Court, as
required by PD No. 1508, otherwise known as Katarungang Pambarangay
Law.chanroblesvirtualawlibrary

Respondent judge denied the motion to dismiss. He justified the order in this
wise:jgc:chanrobles.com.ph

"The Clerk of Court when this case was filed accepted for filing same. That from the acceptance
from (sic) filing, with the plaintiff having paid the docket fee to show that the case was docketed
in the civil division of this court could be considered as meeting the requirement or precondition
for were it not so, the Clerk of Court would not have accepted the filing of the case especially
that there is a standing circular from the Chief Justice of the Supreme Court without even
mentioning the Letter of Instruction of the President of the Philippines that civil cases and
criminal cases with certain exceptions must not be filed without passing the barangay court."
(Order dated December 14, 1982, Annex "c", P. 13, Rollo).

Unable to secure a reconsideration of said order, petitioner came to this Court through this
petition for certiorari. In both his comment and memorandum, private respondent admitted not
having availed himself of the barangay conciliation process, but justified such omission by citing
paragraph 4, section 6 of PD 1508 which allows the direct filing of an action in court where the
same may otherwise be barred by the Statute of Limitations, as applying to the case at bar.

The excuse advanced by private respondent is unsatisfactory. Under Article 1147 of the Civil
Code, the period for filing actions for forcible entry and detainer is one year, 1 and this period is
counted from demand to vacate the premises. 2

In the case at bar, the letter-demand was dated August 28, 1982, while the complaint for
ejectment was filed in court on September 16, 1982. Between these two dates, less than a month
had elapsed, thereby leaving at least eleven (11) full months of the prescriptive period provided
for in Article 1147 of the Civil Code. Under the procedure outlined in Section 4 of PD 1508, 3
the time needed for the conciliation proceeding before the Barangay Chairman and the Pangkat
should take no more than 60 days. Giving private respondent nine (9) months — ample time
indeed — within which to bring his case before the proper court should conciliation efforts fail.
Thus, it cannot be truthfully asserted, as private respondent would want Us to believe, that his
case would be barred by the Statute of Limitations if he had to course his action to the Barangay
Lupon.

With certain exceptions, PD 1508 makes the conciliation process at the Barangay level a
condition precedent for filing of actions in those instances where said law applies. For this
reason, Circular No. 22 addressed to "ALL JUDGES OF THE COURTS OF FIRST
INSTANCE, CIRCUIT CRIMINAL COURTS, JUVENILE AND DOMESTIC RELATIONS
COURT, COURTS OF AGRARIAN RELATIONS, CITY COURTS, MUNICIPAL COURTS
AND THEIR CLERKS OF COURT" was issued by Chief Justice Enrique M. Fernando on
November 9, 1979. Said Circular reads:chanrobles.com:cralaw:red

"Effective upon your receipt of the certification by the Minister of Local Government and
Community Development that all the barangays within your respective jurisdictions have
organized their Lupons provided for in Presidential Decree No. 1508, otherwise known as the
Katarungang Pambarangay Law, in implementation of the barangay system of settlement of
disputes, you are hereby directed to desist from receiving complaints, petitions, actions or
proceedings in cases falling within the authority of said Lupons."cralaw virtua1aw library

While respondent acknowledged said Circular in his order of December 14, 1982, he
nevertheless chose to overlook the failure of the complaint in Civil Case No. R-23915 to allege
compliance with the requirement of PD 1508. Neither did he cite any circumstance as would
place the suit outside the operation of said law. Instead, he insisted on relying upon the pro tanto
presumption of regularity in the performance by the clerk of court of his official duty, which to
Our mind has been sufficiently overcome by the disclosure by the Clerk of Court that there was
no certification to file action from the Lupon or Pangkat secretary attached to the complaint. 4

Be that as it may, the instant petition should be dismissed. Under Section 4(a) of PD No. 1508,
referral of a dispute to the Barangay Lupon is required only where the parties thereto are
"individuals." An "individual" means "a single human being as contrasted with a social group or
institution." 5 Obviously, the law applies only to cases involving natural persons, and not where
any of the parties is a juridical person such as a corporation, partnership, corporation sole, testate
or intestate, estate, etc.

In Civil Case No. R-23915, plaintiff Ricardo Reyes is a mere nominal party who is suing in
behalf of the Intestate Estate of Vito Borromeo. While it is true that Section 3, Rule 3 of the
Rules of Court allows the administrator of an estate to sue or be sued without joining the party
for whose benefit the action is presented or defended, it is indisputable that the real party in
interest in Civil Case No. R-23915 is the intestate estate under administration. Since the said
estate is a juridical person 6 plaintiff administrator may file the complaint directly in court,
without the same being coursed to the Barangay Lupon for arbitration.

ACCORDINGLY, the petition is hereby dismissed. Respondent judge is ordered to try and
decide Civil Case No. R-23915 without unnecessary delay. No costs.

SO ORDERED.

Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos and De Castro, JJ., concur.

Aquino J., concurs in the result.

Endnotes:
1. Article 1147 of the Civil Code.

2. Desbarat v. Vda. de Laureano, 18 SCRA 116, Calubayan v. Pascual, 21 SCRA 146,

Development Bank of the Philippines v. Canonoy, 35 SCRA 197.

3. SECTION 4. Procedure for amicable settlement. —

a) Who may initiate proceedings. — Any individual who has a cause of action against another
individual involving any matter within the authority of the Lupon as provided in Section 2 may
complain orally or in writing, to the Barangay Captain of the barangay referred to in Section 3
hereof.

b) Mediation by Barangay Captain. — Upon receipt of the complaint, the Barangay Captain shall
within the next working day summon the respondent/s, with notice to the complainant/s for them
and their witnesses to appear before him for a mediation of their conflicting interests. If he fails
in his effort within fifteen (15) days from the first meeting of the parties before him, he shall
forthwith set a date for the constitution of the Pangkat in accordance with the provisions of
Section 1 of this Decree.

c) Hearing before the Pangkat. — The Pangkat shall convene no later than three (3) days from its
constitution on the day and hour set by the Barangay Captain, to hear both parties and their
witnesses, simplify issues and explore all possibilities for amicable settlement. . . .
x x x

e) Time limit. — The Pangkat shall arrive at a settlement/resolution of the dispute within fifteen
(15) days from the day it convenes in accordance with paragraph (c) hereof. This period, shall at
the discretion of the Pangkat, be extendible for another period which shall not exceed fifteen (15)
days except in clearly meritorious cases."cralaw virtua1aw library

4. Annex D, p. 16, Rollo.

5. Webster’s 3rd New International Dictionary.

6. Limjoco v. Intestate of Fragante, 80 Phil. 776.

 [ GR No. L-1505, May 12, 1948 ]
VALENTIN CAMACHO v. CIR +
DECISION

80 Phil. 848

FERIA, J.:
This is an appeal from the decision of the Court of Industrial Relations which reversed that of the
Tenancy Law Enforcement Division of the Department of Justice that ordered a 70 per cent and
30 per cent division in favor of the petitioners hereinafter deducting from the gross produce the
expenses of harvesting and threshing, the palay planted in the haciendas of the now respondents
located in the Municipality of Sta. Barbara, Pangasinan, during the agricultural year of 1946-
1947.
The decision appealed from declares that the participations of the parties in this case should be
governed, not by the provisions of section 3 of Act No. 34 which amended section 8 of Act No.
4054, as decided by the said Tenancy Division of the Departure nt of Justice, but by an oral,
contract embodying the old customs of tenancy sharing observed by the parties, in accordance
with section 8 of Act No. 4054 which according to the lower court's theory recognizes the
validity of an oral contract. The grounds on which the Court of Industrial Relations bases its
decision is that, although "the records show that Act No. 4054 had been proclaimed effective in
the Province of Pangasinan in January, 1937, Act No. 53 seems to recognize an oral contract
inspite of section 4, of said Act No. 4054;" and there being an "oral contract embodying the old
customs of tenanoy sharing observed by the parties prior to 1945-1946 agricultural year,"
Republic Act No. 34 which amended Act No. 4054 in force in Pangasinan. since 1937 oan not be
applied to tenancy relation between the parties in this case without impairing the obligations of
contract and infringing the Constitution.
After a mature deliberation, we ere of the opinion, and so hold, that the decision of the lower
court is contrary to law and, therefore, must be reversed.
Section 4 of Act No. 4054 provides that "the contract on share tenancy in order to be valid and
binding shall be in writing, drawn in triplicate in the language known to all the parties thereto to
be signed or thumbmarked both by the landlord or his authorized representative and by the tenant
before two witnesses, one to be chosen by each party." But, in view of the provisions of section 1
of Commonwealth Act No. 53, promulgated on October 17, 1936, which prescribes that "where a
covenant or oontraot made between the owner of land and a lessee or tenant on share thereof has
not been reduced to writing or has not been set forth in a document written in a language known
to the lessee or tenant, the testimony of such lessee or tenant "shall be accepted as prima
facie evidence on the terms of a covenant or contract," the lower court concluded that oral
contracts are recognized by law inspite of the provision of section 4 of Act No. 4054 quoted in
the preceding paragraph, and therefore the oral contract embodying the old customs of tenancy
sharing observed by the parties in this case prior to 1945-1946 agricultural year, was valid in
Santa Barbara, Pangasinan, inspite of the provisions of section 4 of Act No. 4054; and that the
effectivity in Pangasinan of Republic Act No. 34, which amended section 8 of said Act No. 4054
relating to saare basis, started from November I2, 1946, when the President issued Proclamation
No. 14 declaring the provision of Act No. 4054, as amended, to be in full force and effect
throughout the Philippines, and not before.
It is obvious that the conclusions of the lower oourt that (1) the so called oral contract between
the parties in this case was valid and binding upon the parties during the agricultural year 1946-
1947, and (2) that Republic Act No. 34 amendatory of section 8 and other sections of Act No.
4054 became effective in Pangasinan on November 12, 1946 the date of the Proclamation,
No.14, are erroneous because they are based on incorrect premises.
(1) The major premise of the first conclusion is not correct. It is elementary rule that a
subsequent general law should not be oonstrued to repeal or modify a prior special law; and that
repeal by implication is not favored, and therefore the former and subsequent act must if
possible, be so construed as to give effect to both. Hence, Commonwealth Act No. 53 which
refers to "covenant or contract made between the owner of land and a lessee or tenant on share
thereof" in general, and does not mention or make any reference to Act No. 4054 should be
construed to apply to tenancy contracts on all other agricultural products which may be oral, as
well as to tenancy contract on rice in provinces where Act No. 4054 had not yet then made
effective by Proclamation in which oral tenancy oontraots were valid; but not in those where said
No. 4054 was proclaimed to be effective and, therefore, oral contracts are not valid and binding.
Because, if in the latter oral contract is not valid and binding, no amount of evidence of whatever
kind can be admitted to prove the legal existence and terms thereof; and besides it is
unconceivable that the Legislature had intended, for it would be retrogressive, to practically
repeal section 4 of Act No. 4054 enacted for the purpose of preventing serious controversies that
may arise as a result of the conflicting interpretation of verbal contracts and other agreements
affecting rice tenancy between landlords and tenants.
The provisions of Act No. 4054, which provides in its section 4 that an oral contract or share
tenancy is not valid and binding, having been in force in the province of Pangasinan since
January 20, 1937, there could not legally exists an effective oral contract between the parties
embodying the old customs of tenancy sharing observed by the parties prior to 1945-1946
agricultural year, and therefore the rice sharing tenancy between the parties must be governed
since the year 1937 by the provisions of section 8 of Act No. 4054 and its amendments.
(2) The major premise of the other conclusion is also incorreot. Proclamation No. 14 issued by
the President of the Philippines dated November 30, 1946, which declares the provisions of Act
No. 4054, as amended, to be in full force and effect throughout the Philippines, was obviously
intended for territories in the Philippines in which said Act had not yet been declared in force by
Proclamation Prior to said date, and not to provinces, like Pangasinan, where Act No. 4054 had
already been put in force since January 20, 1937, which Proclamation was never set aside or
suspended. It is therefore clear that Act No. 34, amendatory of said Act No. 4054, became
effective ipso facto in Pangasinan since the date of its passage, September 30, 1946, in which,
according to the express provision of section 4 thereof became effective; because an amendment
of a law being a part of the original which is already in force and effect in a certain territory,
must necessarily become effective therein as a part of the amended law at the time the
amendment takes effect. Section 4 of Republic Act No. 34 provides that the Act shall take effect
immediately, that is, upon its passage or approval by the President on September 30, 1946; and a
statute which is to take immediate effect is operative from the exact instance of its becoming
law.
Taking into consideration that our Constitution, not only does not place any limitation on the
general legislative power, but ordains Congress to "regulate the relations between landowner and
tenant" (section 6, Article XIV), and provides that "the promotion of social justice to insure the
well-being and economic security of all the people should be the concern of the State" (section 5,
Article II); that it is a "well settled rule that the history of a legislation is also important in
interpreting the intention of the legislative body, and therefore courts may refer to messages of
the executive to the legislature (2 Sutherland's Statutory Construction, (3rd ed., Section 5002,
5004, pp. 481-489); that the President in its message to Congress of the Philippines on August 8,
1946, in recommending the earliest approval of the proposed amendments to the tenancy lam
embodied in Republic Act No. 34, which "establish the fairest possible contractual basis between
the tenant and landowner," according to the Message, the President said that "In view of the fact
that the planting season of rice is under way and that the harvest mill take place before the next
session of the Congress, I earnestly request that this matter receives your early attention and that
the proposed amendment be enacted at an early date'1; and that Act No. 34 was passed by
Congress and approved by the President on September 30, 1946 to take effect immediately; it is
to be inferred that it was the intention of the Congress to make it applicable to the harvest of rice
during the agricultural year 1946-1947.
No retrospective effect would be given to said provision of section 8 of the Act No. 4054, as
amended by section 3 of the Republic Act No. 34 relating to share basis, if applied to the rice
harvested during agricultural year 1946-1947; because said Act No. 34 became effective on
September 30, that is before the esspiration of the agricultural 1946-1947, for "one agricultural
year shall mean the length of time necessary for the preparation of the land sowing, planting and
harvesting a crop" (section 6, Act No. 4054), and the crop in question had been, according to the
conclusion of fact of the lower court, planted during May and harvested during the months from
October to December, 1946, and even January, 1947. And it is a well established rule recognized
by all authorities without exception, that a retrospective or retroactive law is that which creates a
new obligation, imposes a new duty or attaches a new disability in respect to a transaction
already past; but that statute is not made retrospective because it draws on antecedent facts for its
operation, or in other words part of the requirements for its action and application is drawn from
a time antedating its passage (See cases cited in 37 Words and Phrases, pp. 530-533).
But even if to apply Republic Act No. 34 to the tenancy relations in agricultural year 1946-1947
between the parties would be tantamount to giving said Act retroactive or retrospective effect,
our Constitution does not in terms prohibit the enactment of retrospective laws which do not
impair the obligations of contract or deprive a person of property without due process of law,
that is, which do not divest rights of property and vested rights. It is evident that there being no
valid or binding oral tenancy contract, nor a written one for that matter, between parties prior to
the date Act No. 34 became effective, no obligations of contract could be impaired by the
application of said Republic Act No. 34. And no vested right having been acquired by the parties
over the 1946-1947 rice crop under the provision of section 8 of Act No. 4054, applicable to the
division of the crop in the absence of a contract in writing between the parties, before it was
amended by Republic Act No. 34, no vested right could be affected by the application of said
Act No. 34 to the tenancy share in 1946-1947 rice crop.
In view of all the foregoing, and the fact that the conditions set forth in section 8 of Act No.
4054, as amended by section 3 of the Republic Act No. 34, are complied viith in the present case
as found by the lower court in its decision that is, that the tenant owns the work animals and the
necessary implements, that he defrayed the cost of plowing and cultivation, and that the cost of
harvest and threshing were deducted from the gross produce, the decision appealed from is
reversed or set aside, and the decision by the Tenancy Lava Enforcement Division of the
Department of Justice, in so far as it applies the provisions of said Act No. 34 to the present case,
be carried out, with costs against the respondent. So ordered.
Moran, C. J., Parás, Pablo, Perfecto, Briones, and Padilla, JJ. concur.

DISSENTING
HILADO, J.:
I dissent.
Among the facts stipulated by the parties, as narrated on pages 2-3 of the decision of the Court of
Industrial Relations, is that the rice planting season of 1946-1947 on the lands involved herein
commenced in May and ended in July. It is therefore obvious that the palay crops in question
were planted during those months of the year 1946. It behooves us, consequently, to inquire:
What was the governing provision of the law at the time as to the respective shares that should
pertain to the tenants and to the landlords? For it goes without saying that both landlords and
tenants must be taken to have entered into their relation as such, for that agricultural year, in
view of, and pursuant to? those legal provisions.
Section 8 of Act No. 4054 provides:
"SEC. 8. Share basis. In the absence of any written agreement to the contrary and when the
necessary implements and the work animals are furnished by the tenant; and the expenses for
planting, harvesting, threshing, irrigation and fertilizer, if any, as well as other expenses incident
to the proper cultivation of the land, are borne equally by both the landlord and tenant, the crop
shall be divided equally. The division shall be made in the same place where, the crop has been
threshed and each party shall transport his share to his warehouse, unless the contrary is
stipulated by the parties: Provided, however, That when the landlord furnishes the work animal
gratuitously it shall be deemed as a special consideration, and the tenant shall be obliged to
transport the share of the landlord to his warehouse if it is within the municipality where the land
cultivated is situated."
The above quoted provision, along with the other sections of said Act No. 4054, was proclaimed
effective in the province of Pangasinan in January, 1937, as found by the Court of Industrial
Relations in its decision appealed from. Hence, there being no written contract of tenancy
between the instant parties, their shares in the crops under consideration must be determined
pursuant to said section 8, which was in force when they entered into their relation, when the
landlords agreed to let the tenants work their lands ana the latter to work them for the planting
and raising of palay. In effect, the law, because they themselves did not in writing fix them, fixed
their shares in the crop upon a 50-50 basis when the necessary implements and the work animals
were furnished by the tenants, and the expenses for planting, harvesting, threshing, irrigation and
fertilizer, if any, as well as other expenses incident to the proper cultivation of the land, were
borne equally by both the landlords and tenants. The Court of Industrial Relations decided that
the crops in question shall be divided pursuant to said section 8, with the requirement (in order to
adjust matters exactly to the legal mandate) that the landlords shall reimburse the tenants for one-
half of the expenses of planting and others incidental to the proper cultivation of the said lands,
the said tenants being the owners of their work animals and implements, the landlords having
supplied only the seeds. In my opinion this is a correct solution of the problem, with the sole
modification that the tenants should also be required to reimburse the landlords for one-half of
the seeds thus supplied or their reasonable value.
I believe that when enacting Republic Act No. 34, amendatory of Act No. 4054, the Congress,
and in issuing his proclamation No. 14 of November 12, 1946, the President, did not intend that
said amendatory act or said proclamation should be applicable to crops already planted pursuant
to the former legal provisions in force at the time of the planting and before the amendment.
Section 4 of Republic Act No. 34 itself clearly evinces the intention to give it only prospective
effect, and neither said act nor said proclamation contain express terms of retroactivity.
Furthermore, for the law, as in the case of section 8 of Act No. 4054, to tell the landlord and the
tenant that if they do not stipulate to the contrary in writing their shares in the product shall be
equal, as therein defined and specified, and after both parties have accordingly acted, and when
the planted crops are already bearing fruit and nearing harvest, or being harvested, to change the
sharing basis from 50-50 to 70-30 or the like, would be to my mind nothing short of a deception
practised by the law upon the prejudiced party. I cannot support such an absurd construction. No
consideration of social justice can possibly justify such an injustice to the landlord or to the
tenant, whoever comes out prejudiced by the ex post facto change in the law. If the change, as
happened through Republic Act No. 34, was against the landlord, it might well have been that he
would not have agreed to enter into that landlord-tenant relation if the law had been changed
before its creation. And we can also suppose that if such change had been adverse to the tenant
and had been made before the initiation of the landlord-tenant relation, such tenant might not
have entered into it and invested labor or money thereunder.
The construction in favor of giving the amendment retroactive effectiveness, on the score of
social justice, in the first place would appear rather to tend toward socialism, and in the second,
might tend to the prejudice of the tenants themselves. I say socialism because it subjects the
landlord's property to use and enjoyment by the tenant upon terms not voluntarily accepted by
the former but arbitrarily imposed by the government after said landlord had agreed to let his
property be worked by the tenant under terms required or permitted by the law in force at the
time. And I say to the prejudice of the tenant himself, because it is not hard to see that under such
a regime no reasonably prudent landlord would be inclined to allow his property to be worked by
a tenant for fear that at any time before the actual division of the crop the government may
arbitrarily change his share in the crop from that which was required or permitted when he
delivered his property to be worked by his tenant, without such landlord being able to foresee or
even guess how great the change might come out to be. For instance, under such a theory the
government might have changed the shares from 50-50 to 90-10 or any other proportion more
onerous to the landlord than 70-30. In such a state of affairs it is easily comprehensible that
tenants would likely be deprived of the very opportunity to work landlords' lands and find it hard
to find lands to work, with the result that what was thought to be a measure of social justice for
the amelioration of their lot may on the contrary tend to aggravate their situation.
BENGZON, J.:
I believe, like Mr. Justice Hilado, that the law should not apply to contracts already existing at
the time of its approval. I join his dissent.
TUASON, J.:
I concur in Mr. Justice Hilado's dissenting opinion.
Decision reversed.