Tanada v. Tuvera, G.R. No.

L-63915, 29 December 1986, 146 SCRA 446

[G.R. No. L-63915. December 29, 1986.]

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

INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners, vs. HON. JUAN C. TUVERA. in his capacity as
Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive
Assistant to the President, MELQUIADES P. DE LA CRUZ, ETC., ET AL., respondents.

SYLLABUS

FERNAN, J., concurring:

1. CIVIL LAW; EFFECT AND APPLICATION OF LAWS; ARTICLE 2, CIVIL CODE; PUBLICATION OF LAWS
MADE TO ENSURE CONSTITUTIONAL RIGHT TO DUE PROCESS AND TO INFORMATION. — The categorical
statement by this Court on the need for publication before any law be made effective seeks to prevent
abuses on the part if the lawmakers and, at the time, ensure to the people their constitutional right to
due process and to information on matter of public concern. cda

RESOLUTION

CRUZ, J p:

Due process was invoked by the petitioners in demanding the disclosure or a number of presidential
decrees which they claimed had not been published as required by law. The government argued that
while publication was necessary as a rule, it was not so when it was "otherwise provided," as when the
decrees themselves declared that they were to become effective immediately upon their approval. In
the decision of this case on April 24, 1985, the Court affirmed the necessity for the publication of some
of these decrees, declaring in the dispositive portion as follows:

"WHEREFORE, the Court hereby orders respondents to publish to the Official Gazette all unpublished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

The petitioners are now before us again, this time to move for reconsideration/clarification of that
decision. 1 Specifically, they ask the following questions:

1. What is meant by "law of public nature" or "general applicability"?

2. Must a distinction be made between laws of general applicability and laws which are not?

3. What is meant by "publication"?

4. Where is the publication to be made?

5. When is the publication to be made?

1
Resolving their own doubts, the petitioners suggest that there should be no distinction between laws of
general applicability and those which are not; that publication means complete publication; and that the
publication must be made forthwith in the Official Gazette. 2

In the Comment 3 required of the then Solicitor General, he claimed first that the motion was a request
for an advisory opinion and should therefore be dismissed, and, on the merits, that the clause "unless it
is otherwise provided" in Article 2 of the Civil Code meant that the publication required therein was not
always imperative; that publication, when necessary, did not have to be made in the Official Gazette;
and that in any case the subject decision was concurred in only by three justices and consequently not
binding. This elicited a Reply 4 refuting these arguments. Came next the February Revolution and the
Court required the new Solicitor General to file a Rejoinder in view of the supervening events, under
Rule 3, Section 18, of the Rules of Court. Responding, he submitted that issuances intended only for the
interval administration of a government agency or for particular persons did not have to be published;
that publication when necessary must be in full and in the Official Gazette; and that, however, the
decision under reconsideration was not binding because it was not supported by eight members of this
Court. 5

The subject of contention is Article 2 of the Civil Code providing as follows:

"ART. [Link] shall take effect after fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided. This Code shall take effect one year after such
publication."

After a careful study of this provision and of the arguments of the parties, both on the original petition
and on the instant motion, we have come to the conclusion, and so hold, that the clause "unless it is
otherwise provided" refers to the date of effectivity and not to the requirement of publication itself,
which cannot in any event be omitted. This clause does not mean that the legislature may make the law
effective immediately upon approval, or on any other date, without its previous publication. cdphil

Publication is indispensable in every case, but the legislature may in its discretion provide that the usual
fifteen-day period shall be shortened or extended. An example, as pointed out by the present Chief
Justice in his separate concurrence in the original decision, 6 is the Civil Code which did not become
effective after fifteen days from its publication in the Official Gazette but "one year after such
publication." The general rule did not apply because it was "otherwise provided."

It is not correct to say that under the disputed clause publication may be dispensed with altogether. The
reason is that such omission would offend due process insofar as it would deny the public knowledge of
the laws that are supposed to govern it. Surely, if the legislature could validly provide that a law shall
become effective immediately upon its approval notwithstanding the lack of publication (or after an
unreasonably short period after publication), it is not unlikely that persons not aware of it would be
prejudiced as a result; and they would be so not because of a failure to comply with it but simply
because they did not know of its existence. Significantly, this is not true only of penal laws as is
commonly supposed. One can think of many non-penal measures, like a law on prescription, which must
also be communicated to the persons they may affect before they can begin to operate. LexLib

2
We note at this point the conclusive presumption that every person knows the law, which of course
presupposes that the law has been published if the presumption is to have any legal justification at all. It
is no less important to remember that Section 6 of the Bill of Rights recognizes "the right of the people
to information on matters of public concern," and this certainly applies to, among others, and indeed
especially, the legislative enactments of the government.

The term "laws" should refer to all laws and not only to those of general application, for strictly speaking
all laws relate to the people in general albeit there are some that do not apply to them directly. An
example is a law granting citizenship to a particular individual, like a relative of President Marcos who
was decreed instant naturalization. It surely cannot be said that such a law does not affect the public
although it unquestionably does not apply directly to all the people. The subject of such law is a matter
of public interest which any member of the body politic may question in the political forums or, if he is a
proper party, even in the courts of justice. In fact, a law without any bearing on the public would be
invalid as an intrusion of privacy or as class legislation or as an ultra vires act of the legislature. To be
valid, the law must invariably affect the public interest even if it might be directly applicable only to one
individual, or some of the people only, and not to the public as a whole.

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

Covered by this rule are presidential decrees and executive orders promulgated by the President in the
exercise of legislative powers whenever the same are validly delegated by the legislature or, at present,
directly conferred by the Constitution. Administrative rules and regulations must also be published if
their purpose is to enforce or implement existing law pursuant also to a valid delegation.

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

Accordingly, even the charter of a city must be published notwithstanding that it applies to only a
portion of the national territory and directly affects only the inhabitants of that place. All presidential
decrees must be published, including even, say, those naming a public place after a favored individual or
exempting him from certain prohibitions or requirements. The circulars issued by the Monetary Board
must be published if they are meant not merely to interpret but to "fill in the details" of the Central
Bank Act which that body is supposed to enforce.

However, no publication is required of the instructions issued by, say, the Minister of Social Welfare on
the case studies to be made in petitions for adoption or the rules laid down by the head of a
government agency on the assignments or workload of his personnel or the wearing of office uniforms.
Parenthetically, municipal ordinances are not covered by this rule but by the Local Government Code.

3
We agree that the publication must be in full or it is no publication at all since its purpose is to inform
the public of the contents of the laws. As correctly pointed out by the petitioners, the mere mention of
the number of the presidential decree, the title of such decree, its whereabouts (e.g., "with Secretary
Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot
satisfy the publication requirement. This is not even substantial compliance. This was the manner,
incidentally, in which the General Appropriations Act for FY 1975, a presidential decree undeniably of
general applicability and interest, was "published" by the Marcos administration. 7 The evident purpose
was to withhold rather than disclose information on this vital law.

Coming now to the original decision, it is true that only four justices were categorically for publication in
the Official Gazette 8 and that six others felt that publication could be made elsewhere as long as the
people were sufficiently informed. 9 One reserved his vote 10 and another merely acknowledged the
need for due publication without indicating where it should be made, 11 It is therefore necessary for the
present membership of this Court to arrive at a clear consensus on this matter and to lay down a binding
decision supported by the necessary vote.

There is much to be said of the view that the publication need not be made in the Official Gazette,
considering its erratic releases and limited readership. Undoubtedly, newspapers of general circulation
could better perform the function of communicating the laws to the people as such periodicals are more
easily available, have a wider readership, and come out regularly. The trouble, though, is that this kind
of publication is not the one required or authorized by existing law. As far as we know, no amendment
has been made of Article 2 of the Civil Code. The Solicitor General has not pointed to such a law, and we
have no information that it exists. If it does, it obviously has not yet been published.

At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify it if we
find it impractical. That is not our function. That function belongs to the legislature. Our task is merely to
interpret and apply the law as conceived and approved by the political departments of the government
in accordance with the prescribed procedure. Consequently, we have no choice but to pronounce that
under Article 2 of the Civil Code, the publication of laws must be made in the Official Gazette, and not
elsewhere, as a requirement for their effectivity after fifteen days from such publication or after a
different period provided by the legislature. LLphil

We also hold that the publication must be made forthwith, or at least as soon as possible, to give effect
to the law pursuant to the said Article 2. There is that possibility, of course, although not suggested by
the parties that a law could be rendered unenforceable by a mere refusal of the executive, for whatever
reason, to cause its publication as required. This is a matter, however, that we do not need to examine
at this time.

Finally, the claim of the former Solicitor General that the instant motion is a request for an advisory
opinion is untenable, to say the least, and deserves no further comment.

The days of the secret laws and the unpublished decrees are over. This is once again an open society,
with all the acts of the government subject to public scrutiny and available always to public cognizance.

4
This has to be so if our country is to remain democratic, with sovereignty residing in the people and all
government authority emanating from them.

Although they have delegated the power of legislation, they retain the authority to review the work of
their delegates and to ratify or reject it according to their lights, through their freedom of expression
and their right of suffrage. This they cannot do if the acts of the legislature are concealed.

Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with
their dark, deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as
binding unless their existence and contents are confirmed by a valid publication intended to make full
disclosure and give proper notice to the people. The furtive law is like a scabbarded saber that cannot
feint, parry or cut unless the naked blade is drawn.

WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their approval,
or as soon thereafter as possible, be published in full in the Official Gazette, to become effective only
after fifteen days from their publication, or on another date specified by the legislature, in accordance
with Article 2 of the Civil Code. dctai

SO ORDERED.

Teehankee, C .J ., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr ., and Paras, JJ ., concur.

Separate Opinions

FERNAN, J ., concurring:

While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice Isagani A.
Cruz, I would like to add a few observations. Even as a Member of the defunct Batasang Pambansa, I
took a strong stand against the insidious manner by which the previous dispensation had promulgated
and made effective thousands of decrees, executive orders, letters of instructions, etc. Never has the
law-making power which traditionally belongs to the legislature been used and abused to satisfy the
whims and caprices of a one-man legislative mill as it happened in the past regime. Thus, in those days,
it was not surprising to witness the sad spectacle of two presidential decrees bearing the same number,
although covering two different subject matters. In point is the case of two presidential decrees bearing
number 1686 issued on March 19, 1980, one granting Philippine citizenship to Michael M. Keon, the
then President's nephew and the other imposing a tax on every motor vehicle equipped with air-
conditioner. This was further exacerbated by the issuance of PD No. 1686-A also on March 19, 1980
granting Philippine citizenship to basketball players Jeffrey Moore and Dennis George Still. cdll

The categorical statement by this Court on the need for publication before any law may be made
effective seeks to prevent abuses on the part of the lawmakers and, at the same time, ensures to the
people their constitutional right to due process and to information on matters of public concern.

FELICIANO, J ., concurring:

5
I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz. At the
same time, I wish to add a few statements to reflect my understanding of what the Court is saying.
cdlex

A statute which by its terms provides for its coming into effect immediately upon approval thereof, is
properly interpreted as coming into effect immediately upon publication thereof in the Official Gazette
as provided in Article 2 of the Civil Code. Such statute, in other words, should not be regarded as
purporting literally to come into effect immediately upon its approval or enactment and without need of
publication. For so to interpret such statute would be to collide with the constitutional obstacle posed
by the due process clause. The enforcement of prescriptions which are both unknown to and
unknowable by those subjected to the statute, has been throughout history a common tool of tyrannical
governments. Such application and enforcement constitutes at bottom a negation of the fundamental
principle of legality in the relations between a government and its people.

At the same time, it is clear that the requirement of publication of a statute in the Official Gazette, as
distinguished from any other medium such as a newspaper of general circulation, is embodied in a
statutory norm and is not a constitutional command. The statutory norm is set out in Article 2 of the
Civil Code and is supported and reinforced by Section 1 of Commonwealth Act No. 638 and Section 35 of
the Revised Administrative Code. A specification of the Official Gazette as the prescribed medium of
publication may therefore be changed. Article 2 of the Civil Code could, without creating a constitutional
problem, be amended by a subsequent statute providing, for instance, for publication either in the
Official Gazette or in a newspaper of general circulation in the country. Until such an amendatory
statute is in fact enacted, Article 2 of the Civil Code must be obeyed and publication effected in the
Official Gazette and not in any other medium. LLjur

6
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners, vs. HON. JUAN C. TUVERA, in his capacity as
Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive
Assistant to the President, MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records
Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

Lorenzo M. Tañada, Abraham F. Sarmiento, Mabini Legal Aid Committee for petitioners

Solicitor General for respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE; LEGAL

PERSONALITY OF PETITIONERS TO FILE MANDAMUS TO COMPEL PUBLICATION, RECOGNIZED. — The
subject of the petition is to compel the performance of a public duty and petitioners maintain they need
not show any specific interest for their petition to be given due course. The right sought to be enforced
by petitioners is a public right recognized by no less than the fundamental law of the land. If petitioners
were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other
person to initiate the same, considering that the Solicitor General, the government officer generally
empowered to represent the people, has entered his appearance for respondents in this case.

2. ID.; ID.; ID.; ARTICLE 2 CIVIL CODE DOES NOT PRECLUDE PUBLICATION IN THE OFFICIAL GAZETTE
EVEN IF THE LAW ITSELF PROVIDES FOR DATE OF ITS EFFECTIVITY. — That publication in the Official
Gazette is not a sine qua non requirement for the effectivity of laws where the laws themselves provide
for their own effectivity dates is correct only insofar as it equates the effectivity of laws with the fact of
publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is
easily reached that said Article 2 does not preclude the requirement of publication in the Official
Gazette, even if the law itself provides for the date of its effectivity.

3. ID.; ID.; ID.; RATIONALE. — The clear object of Article 2 of the Civil Code is to give the general
public adequate notice of the various laws which are to regulate their actions and conduct as citizens.
Without such notice and publication, there would be no basis for the application of the maxim
"ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen
for the transgression of a law of which he had no notice whatsoever, not even a constructive one.

4. ID.; ID.; ID.; PUBLICATION OF PRESIDENTIAL ISSUANCES "OF A PUBLIC NATURE" OR "OF
GENERAL APPLICABILITY," A REQUIREMENT OF DUE PROCESS; UNPUBLISHED PRESIDENTIAL ISSUANCES
WITHOUT FORCE AND EFFECT. — The publication of all presidential issuances "of a public nature" or "of
general applicability" is mandated by law. Obviously, presidential decrees that provide for fines,
forfeitures or penalties for their violation or otherwise impose a burden on the people, such as tax and
revenue measures, fall within this category. Other presidential issuances which apply only to particular
persons such as administrative and executive orders need not be published on the assumption that they
have been circularized to all concerned. (People vs. Que Po Lay, 94 Phil. 640; Balbuena, et al. vs.
Secretary of Education, et al., 110 Phil. 150) It is needless to add that the publication of presidential
issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of
law that before a person may be bound by law, he must first be officially and specifically informed of its
contents. The Court therefore declares that presidential issuances of general application, which have not
been published, shall have no force and effect.

7
5. ID.; ID.; ID.; DECLARATION OF INVALIDITY OF UNPUBLISHED PRESIDENTIAL DECREES DOES NOT
AFFECT THOSE WHICH HAVE BEEN ENFORCED OR IMPLEMENTED PRIOR TO THEIR PUBLICATION. — The
implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is
"an operative fact which may have consequences which cannot be justly ignored. The past cannot
always be erased by a new judicial declaration . . .that an all inclusive statement of a principle of
absolute retroactive invalidity cannot be justified."

FERNANDO, C.J., concurring with qualification:

1. CONSTITUTIONAL LAW; STATUTES; PUBLICATION REQUIREMENT NEED NOT BE CONFINED TO

THE OFFICIAL GAZETTE. — It is of course true that without the requisite publication, a due process
question would arise if made to apply adversely to a party who is not even aware of the existence of any
legislative or executive act having the force and effect of law. But such publication required need not be
confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It
conduces to certainty. That is to be admitted. It does not follow, however, that failure to do so would in
all cases and under all circumstances result in a statute, presidential decree, or any other executive act
of the same category being bereft of any binding force and effect. To so hold would raise a
constitutional question. Such a pronouncement would lend itself to the interpretation that such a
legislative or presidential act is bereft of the attribute of effectivity unless published in the Official
Gazette. There is no such requirement in the Constitution.

2. ID.; ID.; ID.; ID.; REQUIREMENT IN ART. 2 CIVIL CODE DOES NOT HAVE THE JUDICIAL FORCE OF A
CONSTITUTIONAL COMMAND. — The Chief Justice's qualified concurrence goes no further than to
affirm that publication is essential to the effectivity of a legislative or executive act of a general
application. He is not in agreement with the view that such publication must be in the Official Gazette.
The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen
days following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment, Republic
Act No. 386. It does not and cannot have the juridical force of a constitutional command. A later
legislative or executive act which has the force and effect of law can legally provide for a different rule.

3. ID.; ID.; ID.; TO DECLARE UNPUBLISHED PRESIDENTIAL ISSUANCES WITHOUT LEGAL FORCE AND
EFFECT WOULD RESULT IN UNDESIRABLE CONSEQUENCES. — Nor does the Chief Justice agree with the
rather sweeping conclusion in the opinion of Justice Escolin that presidential decrees and executive acts
not thus previously published in the Official Gazette would be devoid of any legal character. That would
be, in his opinion, to go too far. It may be fraught, as earlier noted, with undesirable consequences. He
finds himself therefore unable to yield assent to such a pronouncement.

TEEHANKEE, J., concurring:

1. CONSTITUTIONAL LAW; STATUTES, PUBLICATION IN THE OFFICIAL GAZETTE; NECESSARY

PURSUANT TO THE BASIC CONSTITUTIONAL REQUIREMENTS OF DUE PROCESS. — The Rule of Law
connotes a body of norms and laws published and ascertainable and of equal application to all similarly
circumstanced and not subject to arbitrary change but only under certain set procedure. The Court had
consistently stressed that "it is an elementary rule of fair play and justice that a reasonable opportunity
to be informed must be afforded to the people who are commanded to obey before they can be
punished for its violation," (People vs. de Dios, G.R. No. L-11003, August 31, 1959, per the late Chief
Justice Paras) citing the settled principle based on due process enunciated in earlier cases that "before

8
the public is bound by its contents. especially its penal provisions, a law, regulation or circular must first
be published and the people officially and specially informed of said contents and its penalties." Without
official publication in the Official Gazette as required by Article 2 of the Civil Code and Revised
Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of the
Civil Code (based on constructive notice that the provisions of the law are ascertainable from the public
and official repository where they are duly published) that "Ignorance of the law excuses no one from
compliance therewith."

2. ID.; ID.; ID.; RESPONDENTS' CONTENTION THAT "ONLY LAWS WHICH ARE SILENT AS TO THEIR
EFFECTIVITY DATE NEED TO BE PUBLISHED IN THE OFFICIAL GAZETTE FOR THEIR EFFECTIVITY,"
UNTENABLE. — The plain text and meaning of the Civil Code is that "laws shall take effect after fifteen
days following the completion of their publication in the Official Gazette, unless it is otherwise
provided," i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a
law that had been duly published pursuant to the basic constitutional requirements of due process. The
best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall take
effect (only) one year (not 15 days) after such publication." To sustain respondents misreading that
"most laws or decrees specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity" would be to nullify and render nugatory the Civil Code's
indispensable and essential requirement of prior publication in the Official Gazette by the simple
expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally fixed by the Civil Code for
its proper dissemination.

MELENCIO-HERRERA, J., concurring:

CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE; RETROACTIVITY IN

EFFECTIVITY DATE NOT ALLOWED WHERE IT WILL RUN COUNTER TO CONSTITUTIONAL RIGHTS OR
DESTROY VESTED RIGHTS. — There cannot be any question but that even if a decree provides for a date
of effectivity, it has to be published. When a date effectivity is mentioned in the decree but the decree
becomes effective only fifteen (15) days after its publication in the Official Gazette, it will not mean that
the decree can have retroactive effect to the date of effectivity mentioned in the decree itself. There
should be no retroactivity if the retroactivity will run counter to constitutional rights or shall destroy
vested rights.

PLANA, J., separate opinion:

1. CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE NOT ESSENTIAL FOR
EFFECTIVITY FOR EFFECTIVITY OF LAWS. — The Philippine Constitution does not require the publication
of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said though
that the guarantee of due process requires notice of laws to affected parties before they can be bound
thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause
is not that precise. Neither is the publication in the Official Gazette required by any statute as a
prerequisite for their effectivity, if said laws already provide for their effectivity date.

2. ID.; ID.; PUBLICATION MAY BE MADE ELSEWHERE THAN IN THE OFFICIAL GAZETTE. — Article 2
of the Civil Code provides that "laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided." Two things may be said of this
provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will take

9
effect. Secondly, it clearly recognizes that each law may provide not only a different period for reckoning
its effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be
published elsewhere than in the Official Gazette.

3. ID.; ID.; COMMONWEALTH ACT 638 CANNOT NULLIFY OR RESTRICT OPERATION OF A STATUTE
WITH A PROVISION AS TO ITS EFFECTIVITY. — Not all legislative acts are required to be published in the
Official Gazette but only "important" ones "of a public nature." Moreover, Commonwealth Act No. 638
does not provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it
should be, for all statutes are equal and stand on the same footing. A law, especially an earlier one of
general application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a
subsequent statute that has a provision of its own as to when and how it will take effect. Only a higher
law, which is the Constitution, can assume the role.

DECISION

ESCOLIN, J p:

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

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

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

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

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

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

10
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457-471, 474-492, 494-507, 509-510, 522,
524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604,
609, 611-647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857.

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

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

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

"SEC. 3. Petition for Mandamus. — When any tribunal, corporation, board or person unlawfully neglects
the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or
station, or unlawfully excludes another from the use and enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law,
the person aggrieved thereby may file a verified petition in the proper court alleging the facts with
certainty and praying that judgment be rendered commanding the defendant, immediately or at some
other specified time, to do the act required to be done to protect the rights of the petitioner, and to pay
the damages sustained by the petitioner by reason of the wrongful acts of the defendant."

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

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

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party
to the mandamus proceedings brought to compel the Governor General to call a special election for the
position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr.
Justice Grant T. Trent said: Cdpr

"We are therefore of the opinion that the weight of authority supports the proposition that the relator
is a proper party to proceedings of this character when a public right is sought to be enforced. If the
general rule in America were otherwise, we think that it would not be applicable to the case at bar for
the reason 'that it is always dangerous to apply a general rule to a particular case without keeping in

11
mind the reason for the rule, because, if under the particular circumstances the reason for the rule does
not exist, the rule itself is not applicable and reliance upon the rule may well lead to error.'

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

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

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

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

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

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

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

The clear object of the above quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and

12
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It
would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of
which he had no notice whatsoever, not even a constructive one. cdphil

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

The very first clause of Section 1 of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette . . ." The word "shall" used therein imposes upon respondent officials an imperative
duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a list of what should be
published in the official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.

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

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

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

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

13
"The courts below have proceeded on the theory that the Act of Congress, having been found to be
unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and
hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago,
I. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to
the effect of a determination of unconstitutionality must be taken with qualifications. The actual
existence of a statute, prior to such a determination, is an operative fact and may have consequences
which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The
effect of the subsequent ruling as to invalidity may have to be considered in various aspects — with
respect to particular conduct, private and official. Questions of rights claimed to have become vested, of
status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in
the light of the nature both of the statute and of its previous application, demand examination. These
questions are among the most difficult of those which have engaged the attention of courts, state and
federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified."

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

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

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

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

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

SO ORDERED.

14
De Roy v. Court of Appeals, G.R. No. 80718, 29 January 1988

[G.R. No. 80718. January 29, 1988.]

FELISA P. DE ROY and VIRGILIO RAMOS, petitioners, vs. COURT OF APPEALS and LUIS BERNAL, SR., GLENIA
BERNAL, LUIS BERNAL, JR., HEIRS OF MARISSA BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS
BERNAL, SR., respondents.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; PERIOD FOR APPEALING OR FOR FILING A MOTION FOR
RECONSIDERATION, NON-EXTENDIBLE. — The rule laid down in Habaluyas Enterprises, Inc. v. Japzon, [G.R.
No. 70895, August 5, 1985, 138 SCRA 46], that the fifteen-day period for appealing or for filing a motion for
reconsideration cannot be extended.

2. ID.; ID.; ID.; GRACE PERIOD IN BOCAVA CASE, INAPPLICABLE TO THE CASE AT BAR. — The one-month
grace period from the promulgation on May 30, 1986 of the Court's Resolution in the clarificatory Habaluyas
case, or up to June 30, 1986, within which the rule barring extensions of time to file motions for new trial or
reconsideration may still be allowed cannot be invoked by the petitioners as their motion for extension of
time was filed on September 9, 1987, more than a year after the grace period on June 30, 1986.

RESOLUTION

CORTES, J p:

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

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

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

15
appellate court in the Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on
September 24, 1987 but this was denied in the Resolution of October 27, 1987.

This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied
petitioners' motion for extension of time to file a motion for reconsideration, directed entry of judgment and
denied their motion for reconsideration. It correctly applied the rule laid down in Habaluyas Enterprises, Inc.
v. Japzon, [G.R. No. 70895, August 5, 1985, 138 SCRA 46], that the fifteen-day period for appealing or for
filing a motion for reconsideration cannot be extended. In its Resolution denying the motion for
reconsideration, promulgated on May 30, 1986 (142 SCRA 208), this Court en banc restated and clarified the
rule, to wit:

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

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

Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 16, 1985, 144 SCRA 161], stressed the
prospective application of said rule, and explained the operation of the grace period, to wit: LibLex

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

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

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

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

Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to the case
at bar owing to the non-publication of the Habaluyas decision in the Official Gazette as of the time the
subject decision of the Court of Appeals was promulgated. Contrary to petitioners' view, there is no law
requiring the publication of Supreme Court decisions in the Official Gazette before they can be binding and as
a condition to their becoming effective. It is the bounden duty of counsel as lawyer in active law practice to

16
keep abreast of decisions of the Supreme Court particularly where issues have been clarified, consistently
reiterated, and published in the advance reports of Supreme Court decisions (G.R.s) and in such publications
as the Supreme Court Reports Annotated (SCRA) and law journals.

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

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

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

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

17
G.R. No. L-6791 March 29, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. QUE PO LAY, defendant-appellant.

Prudencio de Guzman for appellant.

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

MONTEMAYOR, J.:

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

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

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

However, section 11 of the Revised Administrative Code provides that statutes passed by Congress shall,
in the absence of special provision, take effect at the beginning of the fifteenth day after the completion
of the publication of the statute in the Official Gazette. Article 2 of the new Civil Code (Republic Act No.
386) equally provides that laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided. It is true that Circular No. 20 of the
Central Bank is not a statute or law but being issued for the implementation of the law authorizing its
issuance, it has the force and effect of law according to settled jurisprudence. (See U.S. vs. Tupasi
Molina, 29 Phil., 119 and authorities cited therein.) Moreover, as a rule, circulars and regulations

18
especially like the Circular No. 20 of the Central Bank in question which prescribes a penalty for its
violation should be published before becoming effective, this, on the general principle and theory that
before the public is bound by its contents, especially its penal provisions, a law, regulation or circular
must first be published and the people officially and specifically informed of said contents and its
penalties.

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

El Tribunal Supremo, ha interpretado el articulo 1. del codigo Civil en Sentencia de 22 de Junio de 1910,
en el sentido de que bajo la denominacion generica de leyes, se comprenden tambien los Reglamentos,
Reales decretos, Instrucciones, Circulares y Reales ordenes dictadas de conformidad con las mismas por
el Gobierno en uso de su potestad. Tambien el poder ejecutivo lo ha venido entendiendo asi, como lo
prueba el hecho de que muchas de sus disposiciones contienen la advertencia de que empiezan a regir
el mismo dia de su publicacion en la Gaceta, advertencia que seria perfectamente inutil si no fuera de
aplicacion al caso el articulo 1.o del Codigo Civil. (Manresa, Codigo Civil Español, Vol. I. p. 52).

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

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

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

Paras, C.J., Bengzon, Padilla, Reyes, Bautista Angelo, Labrador, Concepcion and Diokno, JJ., concur.

19
G.R. No. 176006 March 26, 2010

NATIONAL POWER CORPORATION, Petitioner,

vs.

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

DECISION

CORONA, J.:

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

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

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

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

No costs.

SO ORDERED.2

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

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

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

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

3. QUALIFIED BIDDERS

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

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

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

21
The RTC upheld Pinatubo’s position and declared items 3 and 3.1 of the circular unconstitutional. The
RTC ruled that it was violative of substantive due process because, while it created rights in favor of
third parties, the circular had not been published. It also pronounced that the circular violated the equal
protection clause since it favored manufacturers and processors of aluminum scrap vis-à-vis
dealers/traders in the purchase of aluminum ACSR cables from NPC. Lastly, the RTC found that the
circular denied traders the right to exercise their business and restrained free competition inasmuch as
it allowed only a certain sector to participate in the bidding.12

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

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

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

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

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

(b) restrained free trade and competition.

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

22
x x x all statutes, including those of local application and private laws, shall be published as a condition
for their effectivity, which shall begin fifteen days after publication unless a different effectivity is fixed
by the legislature.

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

Tañada, however, qualified that:

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

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

Pinatubo’s argument that items 3 and 3.1 of NPC Circular No. 99-75 deprived it of its "right to bid" or
that these conferred such right in favor of a third person is erroneous. Bidding, in its comprehensive
sense, means making an offer or an invitation to prospective contractors whereby the government
manifests its intention to invite proposals for the purchase of supplies, materials and equipment for
official business or public use, or for public works or repair.20 Bidding rules may specify other conditions
or require that the bidding process be subjected to certain reservations or qualifications.21 Since a bid
partakes of the nature of an offer to contract with the government,22 the government agency involved
may or may not accept it. Moreover, being the owner of the property subject of the bid, the

23
government has the power to determine who shall be its recipient, as well as under what terms it may
be awarded. In this sense, participation in the bidding process is a privilege inasmuch as it can only be
exercised under existing criteria imposed by the government itself. As such, prospective bidders,
including Pinatubo, cannot claim any demandable right to take part in it if they fail to meet these
criteria. Thus, it has been stated that under the traditional form of property ownership, recipients of
privileges or largesse from the government cannot be said to have property rights because they possess
no traditionally recognized proprietary interest therein.23

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

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

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

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

Items 3 and 3.1 met the standards of a valid classification. Indeed, as juxtaposed by the RTC, the
purpose of NPC Circular No. 99-75 was to dispose of the ACSR wires.28 As stated by Pinatubo, it was also
meant to earn income for the government.29 Nevertheless, the disposal and revenue-generating
objective of the circular was not an end in itself and could not bar NPC from imposing conditions for the

24
proper disposition and ultimately, the legitimate use of the scrap ACSR wires. In giving preference to
direct manufacturers and producers, it was the intent of NPC to support RA 7832, which penalizes the
theft of ACSR in excess of 100 MCM.30 The difference in treatment between direct manufacturers and
producers, on one hand, and traders, on the other, was rationalized by NPC as follows:

x x x NAPOCOR can now easily monitor the market of its scrap ACSR wires and verify whether or not a
person’s possession of such materials is legal or not; and consequently, prosecute under R.A. 7832,
those whose possession, control or custody of such material is unexplained. This is based upon the
reasonable presumption that if the buyer were a manufacturer or processor, the scrap ACSRs end with
him as the latter uses it to make finished products; but if the buyer were a trader, there is greater
probability that the purchased materials may pass from one trader to another. Should traders without
tie-up to manufacturers or processors of aluminum be allowed to participate in the bidding, the ACSRs
bidded out to them will likely co-mingle with those already proliferating in the illegal market. Thus, great
difficulty shall be encountered by NAPOCOR and/or those authorities tasked to implement R.A. 7832 in
determining whether or not the ACSRs found in the possession, control and custody of a person
suspected of theft [of] electric power transmission lines and materials are the fruit of the offense
defined in Section 3 of R.A. 7832.31

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

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

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

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

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

25
xxx

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

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

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

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

SO ORDERED.

26
G.R. No. 180643 September 4, 2008

ROMULO L. NERI, petitioner,

vs.

SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE

COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND
SECURITY, respondents.

RESOLUTION

LEONARDO-DE CASTRO, J.:

Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It
exists to protect public interest, not to benefit a particular public official. Its purpose, among others, is
to assure that the nation will receive the benefit of candid, objective and untrammeled communication
and exchange of information between the President and his/her advisers in the process of shaping or
forming policies and arriving at decisions in the exercise of the functions of the Presidency under the
Constitution. The confidentiality of the President’s conversations and correspondence is not unique. It is
akin to the confidentiality of judicial deliberations. It possesses the same value as the right to privacy of
all citizens and more, because it is dictated by public interest and the constitutionally ordained
separation of governmental powers.

In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a
hotly, even acrimoniously, debated dispute between the Court’s co-equal branches of government. In
this task, this Court should neither curb the legitimate powers of any of the co-equal and coordinate
branches of government nor allow any of them to overstep the boundaries set for it by our Constitution.
The competing interests in the case at bar are the claim of executive privilege by the President, on the
one hand, and the respondent Senate Committees’ assertion of their power to conduct legislative
inquiries, on the other. The particular facts and circumstances of the present case, stripped of the
politically and emotionally charged rhetoric from both sides and viewed in the light of settled
constitutional and legal doctrines, plainly lead to the conclusion that the claim of executive privilege
must be upheld.

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

A brief review of the facts is imperative.

27
On September 26, 2007, petitioner appeared before respondent Committees and testified for about
eleven (11) hours on matters concerning the National Broadband Project (the "NBN Project"), a project
awarded by the Department of Transportation and Communications ("DOTC") to Zhong Xing
Telecommunications Equipment ("ZTE"). Petitioner disclosed that then Commission on Elections
("COMELEC") Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the
NBN Project. He further narrated that he informed President Gloria Macapagal Arroyo ("President
Arroyo") of the bribery attempt and that she instructed him not to accept the bribe. However, when
probed further on President Arroyo and petitioner’s discussions relating to the NBN Project, petitioner
refused to answer, invoking "executive privilege." To be specific, petitioner refused to answer questions
on: (a) whether or not President Arroyo followed up the NBN Project,4 (b) whether or not she directed
him to prioritize it,5 and (c) whether or not she directed him to approve it.6

Respondent Committees persisted in knowing petitioner’s answers to these three questions by requiring
him to appear and testify once more on November 20, 2007. On November 15, 2007, Executive
Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to dispense with
petitioner’s testimony on the ground of executive privilege.7 The letter of Executive Secretary Ermita
pertinently stated:

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

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

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

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

28
On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the
President invoking executive privilege. On November 22, 2007, the respondent Committees issued the
show-cause letter requiring him to explain why he should not be cited in contempt. On November 29,
2007, in petitioner’s reply to respondent Committees, he manifested that it was not his intention to
ignore the Senate hearing and that he thought the only remaining questions were those he claimed to
be covered by executive privilege. He also manifested his willingness to appear and testify should there
be new matters to be taken up. He just requested that he be furnished "in advance as to what else" he
"needs to clarify."

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

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

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

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

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

29
On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on the
following grounds:

CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO DOUBT THAT THE ASSAILED ORDERS
WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE EXERCISE OF THEIR LEGISLATIVE
POWER, AND NOT MERELY THEIR OVERSIGHT FUNCTIONS.

II

CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE CAN BE NO PRESUMPTION THAT THE
INFORMATION WITHHELD IN THE INSTANT CASE IS PRIVILEGED.

III

CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO FACTUAL OR LEGAL BASIS TO HOLD
THAT THE COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3) QUESTIONS ARE COVERED BY
EXECUTIVE PRIVILEGE, CONSIDERING THAT:

A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE IS CLAIMED
CONSTITUTE STATE SECRETS.

B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS APPLIED, THERE IS NO
SHOWING THAT THE ELEMENTS OF PRESIDENTIAL COMMUNICATIONS PRIVILEGE ARE PRESENT.

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

DISCLOSURE OF THE INFORMATION SOUGHT.

D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE WOULD SERIOUSLY IMPAIR
THE RESPONDENTS’ PERFORMANCE OF THEIR PRIMARY FUNCTION TO ENACT LAWS.

E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND THE CONSTITUTIONAL
POLICIES ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH THE CLAIM OF EXECUTIVE
PRIVILEGE.

30
IV

CONTRARY TO THIS HONORABLE COURT’S DECISION, RESPONDENTS DID NOT COMMIT GRAVE ABUSE
OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER, CONSIDERING THAT:

A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE.

B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN IN SENATE V. ERMITA.

C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH THEIR INTERNAL RULES.

D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI, SECTION 21 OF THE
CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE BE DULY PUBLISHED, AND WERE DENIED
DUE PROCESS WHEN THE COURT CONSIDERED THE OSG’S INTERVENTION ON THIS ISSUE WITHOUT
GIVING RESPONDENTS THE OPPORTUNITY TO COMMENT.

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

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

For its part, the Office of the Solicitor General maintains that: (1) there is no categorical pronouncement
from the Court that the assailed Orders were issued by respondent Committees pursuant to their
oversight function; hence, there is no reason for them "to make much" of the distinction between
Sections 21 and 22, Article VI of the Constitution; (2) presidential communications enjoy a presumptive
privilege against disclosure as earlier held in Almonte v. Vasquez9 and Chavez v. Public Estates Authority
(PEA)10; (3) the communications elicited by the three (3) questions are covered by executive privilege,

31
because all the elements of the presidential communications privilege are present; (4) the subpoena ad
testificandum issued by respondent Committees to petitioner is fatally defective under existing law and
jurisprudence; (5) the failure of the present Senate to publish its Rules renders the same void; and (6)
respondent Committees arbitrarily issued the contempt order.

Incidentally, respondent Committees’ objection to the Resolution dated March 18, 2008 (granting the
Office of the Solicitor General’s Motion for Leave to Intervene and to Admit Attached Memorandum)
only after the promulgation of the Decision in this case is foreclosed by its untimeliness.

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

(1) whether or not there is a recognized presumptive presidential communications privilege in our legal
system;

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

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

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

We shall discuss these issues seriatim.

There Is a Recognized Presumptive Presidential Communications Privilege

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

Respondent Committees argue as if this were the first time the presumption in favor of the presidential
communications privilege is mentioned and adopted in our legal system. That is far from the truth. The
Court, in the earlier case of Almonte v. Vasquez,12 affirmed that the presidential communications
privilege is fundamental to the operation of government and inextricably rooted in the separation of
powers under the Constitution. Even Senate v. Ermita,13 the case relied upon by respondent
Committees, reiterated this concept. There, the Court enumerated the cases in which the claim of
executive privilege was recognized, among them Almonte v. Chavez, Chavez v. Presidential Commission
on Good Government (PCGG),14 and Chavez v. PEA.15 The Court articulated in these cases that "there
are certain types of information which the government may withhold from the public,16" that there is a

32
"governmental privilege against public disclosure with respect to state secrets regarding military,
diplomatic and other national security matters";17 and that "the right to information does not extend to
matters recognized as ‘privileged information’ under the separation of powers, by which the Court
meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings."

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

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

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

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

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

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

33
Such presumptive authorization, however, is contrary to the exceptional nature of the privilege.
Executive privilege, as already discussed, is recognized with respect to information the confidential
nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive
branch, or in those instances where exemption from disclosure is necessary to the discharge of highly
important executive responsibilities. The doctrine of executive privilege is thus premised on the fact that
certain information must, as a matter of necessity, be kept confidential in pursuit of the public interest.
The privilege being, by definition, an exemption from the obligation to disclose information, in this case
to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing
that obligation in a particular case.

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

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

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

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

Executive privilege

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

Schwart defines executive privilege as "the power of the Government to withhold information from the
public, the courts, and the Congress. Similarly, Rozell defines it as "the right of the President and high-
level executive branch officers to withhold information from Congress, the courts, and ultimately the
public." x x x In this jurisdiction, the doctrine of executive privilege was recognized by this Court in

34
Almonte v. Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It
quoted the following portion of the Nixon decision which explains the basis for the privilege:

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

Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential
communication," which was recognized early on in Almonte v. Vasquez. To construe the passage in
Senate v. Ermita adverted to in the Motion for Reconsideration of respondent Committees, referring to
the non-existence of a "presumptive authorization" of an executive official, to mean that the
"presumption" in favor of executive privilege "inclines heavily against executive secrecy and in favor of
disclosure" is to distort the ruling in the Senate v. Ermita and make the same engage in self-
contradiction.

Senate v. Ermita expounds on the constitutional underpinning of the relationship between the Executive
Department and the Legislative Department to explain why there should be no implied authorization or
presumptive authorization to invoke executive privilege by the President’s subordinate officials, as
follows:

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

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

35
II

There Are Factual and Legal Bases to Hold that the Communications Elicited by the Three (3) Questions
Are Covered by Executive Privilege

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

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

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

This argument is unpersuasive.

The fact that a power is subject to the concurrence of another entity does not make such power less
executive. "Quintessential" is defined as the most perfect embodiment of something, the concentrated
essence of substance.24 On the other hand, "non-delegable" means that a power or duty cannot be
delegated to another or, even if delegated, the responsibility remains with the obligor.25 The power to
enter into an executive agreement is in essence an executive power. This authority of the President to
enter into executive agreements without the concurrence of the Legislature has traditionally been
recognized in Philippine jurisprudence.26 Now, the fact that the President has to secure the prior
concurrence of the Monetary Board, which shall submit to Congress a complete report of its decision
before contracting or guaranteeing foreign loans, does not diminish the executive nature of the power.

The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of
government by no means prescribes absolute autonomy in the discharge by each branch of that part of
the governmental power assigned to it by the sovereign people. There is the corollary doctrine of checks
and balances, which has been carefully calibrated by the Constitution to temper the official acts of each
of these three branches. Thus, by analogy, the fact that certain legislative acts require action from the
President for their validity does not render such acts less legislative in nature. A good example is the
power to pass a law. Article VI, Section 27 of the Constitution mandates that every bill passed by
Congress shall, before it becomes a law, be presented to the President who shall approve or veto the
same. The fact that the approval or vetoing of the bill is lodged with the President does not render the
power to pass law executive in nature. This is because the power to pass law is generally a
quintessential and non-delegable power of the Legislature. In the same vein, the executive power to
enter or not to enter into a contract to secure foreign loans does not become less executive in nature

36
because of conditions laid down in the Constitution. The final decision in the exercise of the said
executive power is still lodged in the Office of the President.

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

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

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

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

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

37
organizational structure. Thus, respondent Committees’ fear that the scope of the privilege would be
unnecessarily expanded with the use of the operational proximity test is unfounded.

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

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

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

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

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

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

38
The nature of foreign negotiations requires caution, and their success must often depend on secrecy,
and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual
concessions which may have been proposed or contemplated would be extremely impolitic, for this
might have a pernicious influence on future negotiations or produce immediate inconveniences,
perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was
one cogent reason for vesting the power of making treaties in the President, with the advice and
consent of the Senate, the principle on which the body was formed confining it to a small number of
members. To admit, then, a right in the House of Representatives to demand and to have as a matter of
course all the papers respecting a negotiation with a foreign power would be to establish a dangerous
precedent.

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

Privileged character of diplomatic negotiations

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

In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s
representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement.
The Court denied the petition, stressing that "secrecy of negotiations with foreign countries is not
violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of
access to information." The Resolution went on to state, thus:

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

"A complicated negotiation …cannot be carried through without many, many private talks and
discussion, man to man; many tentative suggestions and proposals. Delegates from other countries
come and tell you in confidence of their troubles at home and of their differences with other countries
and with other delegates; they tell you of what they would do under certain circumstances and would
not do under other circumstances… If these reports… should become public… who would ever trust
American Delegations in another conference? (United States Department of State, Press Releases, June
7, 1930, pp. 282-284)

39
xxxx

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

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

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

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

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

40
With respect to respondent Committees’ invocation of constitutional prescriptions regarding the right of
the people to information and public accountability and transparency, the Court finds nothing in these
arguments to support respondent Committees’ case.

There is no debate as to the importance of the constitutional right of the people to information and the
constitutional policies on public accountability and transparency. These are the twin postulates vital to
the effective functioning of a democratic government. The citizenry can become prey to the whims and
caprices of those to whom the power has been delegated if they are denied access to information. And
the policies on public accountability and democratic government would certainly be mere empty words
if access to such information of public concern is denied.

In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific
questions, did not in any way curb the public’s right to information or diminish the importance of public
accountability and transparency.

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

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

Article III, Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official records, and
to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.

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

41
In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no specific
laws prescribing the exact limitations within which the right may be exercised or the correlative state
duty may be obliged. Nonetheless, it enumerated the recognized restrictions to such rights, among
them: (1) national security matters, (2) trade secrets and banking transactions, (3) criminal matters, and
(4) other confidential information. National security matters include state secrets regarding military and
diplomatic matters, as well as information on inter-government exchanges prior to the conclusion of
treaties and executive agreements. It was further held that even where there is no need to protect such
state secrets, they must be "examined in strict confidence and given scrupulous protection."

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

For clarity, it must be emphasized that the assailed Decision did not enjoin respondent Committees from
inquiring into the NBN Project. All that is expected from them is to respect matters that are covered by
executive privilege.

III.

Respondent Committees Failed to Show That

the Communications Elicited by the Three Questions

Are Critical to the Exercise of their Functions

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

42
At the outset, it must be clarified that the Decision did not pass upon the nature of respondent
Committees’ inquiry into the NBN Project. To reiterate, this Court recognizes respondent Committees’
power to investigate the NBN Project in aid of legislation. However, this Court cannot uphold the view
that when a constitutionally guaranteed privilege or right is validly invoked by a witness in the course of
a legislative investigation, the legislative purpose of respondent Committees’ questions can be
sufficiently supported by the expedient of mentioning statutes and/or pending bills to which their
inquiry as a whole may have relevance. The jurisprudential test laid down by this Court in past decisions
on executive privilege is that the presumption of privilege can only be overturned by a showing of
compelling need for disclosure of the information covered by executive privilege.

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

We remain unpersuaded by respondents’ assertions.

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

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

"... this presumptive privilege must be considered in light of our historic commitment to the rule of law.
This is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal justice) is

43
that guild shall not escape or innocence suffer.' Berger v. United States, 295 U.S., at 88, 55 [Link]., at 633.
We have elected to employ an adversary system of criminal justice in which the parties contest all issues
before a court of law. The need to develop all relevant facts in the adversary system is both fundamental
and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on
a partial or speculative presentation of the facts. The very integrity of the judicial system and public
confidence in the system depend on full disclosure of all the facts, within the framework of the rules of
evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory
process be available for the production of evidence needed either by the prosecution or by the defense.

xxx xxx xxx

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

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

xxx xxx xxx

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

44
We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in
a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair administration of criminal justice. The
generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a
pending criminal trial. (emphasis supplied)

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

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

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

Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or
demonstratively critical and specific need for facts which is so essential to the judicial power to
adjudicate actual controversies. Also, the bare standard of "pertinency" set in Arnault cannot be lightly

45
applied to the instant case, which unlike Arnault involves a conflict between two (2) separate, co-equal
and coordinate Branches of the Government.

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

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

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

…If respondents are operating under the premise that the president and/or her executive officials have
committed wrongdoings that need to be corrected or prevented from recurring by remedial legislation,
the answer to those three questions will not necessarily bolster or inhibit respondents from proceeding
with such legislation. They could easily presume the worst of the president in enacting such legislation.

For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies
can come up with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly,
during the Oral Argument before this Court, the counsel for respondent Committees impliedly admitted
that the Senate could still come up with legislations even without petitioner answering the three (3)
questions. In other words, the information being elicited is not so critical after all. Thus:

46
CHIEF JUSTICE PUNO

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

ATTY. AGABIN

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

CHIEF JUSTICE PUNO

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

ATTY. AGABIN

I believe it is critical, Your Honor.

CHIEF JUSTICE PUNO

Why?

ATTY. AGABIN

47
For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would like to indorse a
Bill to include Executive Agreements had been used as a device to the circumventing the Procurement
Law.

CHIEF JUSTICE PUNO

But the question is just following it up.

ATTY. AGABIN

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

CHIEF JUSTICE PUNO

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

ATTY. AGABIN

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

CHIEF JUSTICE PUNO

48
Again, that is speculative.

ATTY. AGABIN

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

CHIEF JUSTICE PUNO

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

ATTY. AGABIN

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

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

Anent respondent Committees’ bewailing that they would have to "speculate" regarding the questions
covered by the privilege, this does not evince a compelling need for the information sought. Indeed,
Senate Select Committee on Presidential Campaign Activities v. Nixon43 held that while fact-finding by a
legislative committee is undeniably a part of its task, legislative judgments normally depend more on the
predicted consequences of proposed legislative actions and their political acceptability than on a precise
reconstruction of past events. It added that, normally, Congress legislates on the basis of conflicting

49
information provided in its hearings. We cannot subscribe to the respondent Committees’ self-defeating
proposition that without the answers to the three (3) questions objected to as privileged, the
distinguished members of the respondent Committees cannot intelligently craft legislation.

Anent the function to curb graft and corruption, it must be stressed that respondent Committees’ need
for information in the exercise of this function is not as compelling as in instances when the purpose of
the inquiry is legislative in nature. This is because curbing graft and corruption is merely an oversight
function of Congress.44 And if this is the primary objective of respondent Committees in asking the
three (3) questions covered by privilege, it may even contradict their claim that their purpose is
legislative in nature and not oversight. In any event, whether or not investigating graft and corruption is
a legislative or oversight function of Congress, respondent Committees’ investigation cannot transgress
bounds set by the Constitution.

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

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

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

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

50
Respondent Committees claim that they are conducting an inquiry in aid of legislation and a "search for
truth," which in respondent Committees’ view appears to be equated with the search for persons
responsible for "anomalies" in government contracts.

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

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

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

Should respondent Committees uncover information related to a possible crime in the course of their
investigation, they have the constitutional duty to refer the matter to the appropriate agency or branch
of government. Thus, the Legislature’s need for information in an investigation of graft and corruption

51
cannot be deemed compelling enough to pierce the confidentiality of information validly covered by
executive privilege. As discussed above, the Legislature can still legislate on graft and corruption even
without the information covered by the three (3) questions subject of the petition.

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

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

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

IV

Respondent Committees Committed Grave

Abuse of Discretion in Issuing the Contempt Order

52
Respondent Committees insist that they did not commit grave abuse of discretion in issuing the
contempt order because (1) there is no legitimate claim of executive privilege; (2) they did not violate
the requirements laid down in Senate v. Ermita; (3) they issued the contempt order in accordance with
their internal Rules; (4) they did not violate the requirement under Article VI, Section 21 of the
Constitution requiring the publication of their Rules; and (5) their issuance of the contempt order is not
arbitrary or precipitate.

We reaffirm our earlier ruling.

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

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

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

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

53
A second concern that might be addressed is that the current system allows committees to continually
investigate the Executive without constraint. One process solution addressing this concern is to require
each investigation be tied to a clearly stated purpose. At present, the charters of some congressional
committees are so broad that virtually any matter involving the Executive can be construed to fall within
their province. Accordingly, investigations can proceed without articulation of specific need or purpose.
A requirement for a more precise charge in order to begin an inquiry should immediately work to limit
the initial scope of the investigation and should also serve to contain the investigation once it is
instituted. Additionally, to the extent clear statements of rules cause legislatures to pause and seriously
consider the constitutional implications of proposed courses of action in other areas, they would serve
that goal in the context of congressional investigations as well.

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

Clearly, petitioner’s request to be furnished an advance copy of questions is a reasonable demand that
should have been granted by respondent Committees.

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

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

"Cases both here and abroad, in varying forms of expression, all deny to the courts the power to inquire
into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the

54
absence of showing that there was a violation of a constitutional provision or the rights of private
individuals.

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

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

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

In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order
because during the deliberation of the three (3) respondent Committees, only seven (7) Senators were
present. This number could hardly fulfill the majority requirement needed by respondent Committee on
Accountability of Public Officers and Investigations which has a membership of seventeen (17) Senators
and respondent Committee on National Defense and Security which has a membership of eighteen (18)
Senators. With respect to respondent Committee on Trade and Commerce which has a membership of
nine (9) Senators, only three (3) members were present.57 These facts prompted us to quote in the
Decision the exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the
former raised the issue of lack of the required majority to deliberate and vote on the contempt order.

When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis
Pangilinan stated that any defect in the committee voting had been cured because two-thirds of the
Senators effectively signed for the Senate in plenary session.58

Obviously the deliberation of the respondent Committees that led to the issuance of the contempt order
is flawed. Instead of being submitted to a full debate by all the members of the respondent Committees,
the contempt order was prepared and thereafter presented to the other members for signing. As a
result, the contempt order which was issued on January 30, 2008 was not a faithful representation of

55
the proceedings that took place on said date. Records clearly show that not all of those who signed the
contempt order were present during the January 30, 2008 deliberation when the matter was taken up.

Section 21, Article VI of the Constitution states that:

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

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

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

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

RULE XLIV

UNFINISHED BUSINESS

56
SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same
status.

All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may
be taken by the succeeding Congress as if present for the first time. (emphasis supplied)

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

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

RULE LI

AMENDMENTS TO, OR REVISIONS OF, THE RULES

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

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

RULE LII

DATE OF TAKING EFFECT

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

57
Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate
after an election and the possibility of the amendment or revision of the Rules at the start of each
session in which the newly elected Senators shall begin their term.

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

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

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

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

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

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

58
On the part of respondent Committees, this Court observes their haste and impatience. Instead of ruling
on Executive Secretary Ermita’s claim of executive privilege, they curtly dismissed it as unsatisfactory
and ordered the arrest of petitioner. They could have informed petitioner of their ruling and given him
time to decide whether to accede or file a motion for reconsideration. After all, he is not just an ordinary
witness; he is a high- ranking official in a co-equal branch of government. He is an alter ego of the
President. The same haste and impatience marked the issuance of the contempt order, despite the
absence of the majority of the members of the respondent Committees, and their subsequent disregard
of petitioner’s motion for reconsideration alleging the pendency of his petition for certiorari before this
Court.

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

In the present case, it is respondent Committees’ contention that their determination on the validity of
executive privilege should be binding on the Executive and the Courts. It is their assertion that their
internal procedures and deliberations cannot be inquired into by this Court supposedly in accordance
with the principle of respect between co-equal branches of government. Interestingly, it is a courtesy
that they appear to be unwilling to extend to the Executive (on the matter of executive privilege) or this
Court (on the matter of judicial review). It moves this Court to wonder: In respondent Committees’
paradigm of checks and balances, what are the checks to the Legislature’s all-encompassing, awesome
power of investigation? It is a power, like any other, that is susceptible to grave abuse.

While this Court finds laudable the respondent Committees’ well-intentioned efforts to ferret out
corruption, even in the highest echelons of government, such lofty intentions do not validate or accord
to Congress powers denied to it by the Constitution and granted instead to the other branches of
government.

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

WHEREFORE, respondent Committees’ Motion for Reconsideration dated April 8, 2008 is hereby
DENIED.

59
SO ORDERED.

Valeroso v. People, G.R. No. 164815, 22 February 2008

[G.R. No. 164815. February 22, 2008.]

SR. INSP. JERRY C. VALEROSO, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent.

DECISION

REYES, R.T., J p:

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

Ang batas ay tumitingin sa hinaharap, hindi sa nakaraan. Gayunpaman, ang parusa ng bagong batas ay
iiral kung ito ay pabor sa taong nagkasala na hindi pusakal na kriminal.

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

The Facts

On July 10, 1996, at around 9:30 a.m., SPO2 Antonio M. Disuanco of the Criminal Investigation Division,
Central Police District Command, received a dispatch order 2 from the desk officer. 3 The order directed
him and three (3) other policemen to serve a warrant of arrest 4 issued by Judge Ignacio Salvador
against petitioner Sr. Insp. Jerry C. Valeroso in a case for kidnapping with ransom. 5

After a briefing, the team conducted the necessary surveillance on petitioner, checking his hideouts in
Cavite, Caloocan, and Bulacan. 6 Eventually, the team proceeded to the Integrated National Police (INP)
Central Station at Culiat, Quezon City, where they saw petitioner as he was about to board a tricycle. 7
SPO2 Disuanco and his team approached petitioner. 8 They put him under arrest, informed him of his
constitutional rights, and bodily searched him. 9 Found tucked in his waist 10 was a Charter Arms,
bearing Serial Number 52315 11 with five (5) live ammunition. 12 IaAHCE

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

A verification of the subject firearm at the Firearms and Explosives Division at Camp Crame revealed that
it was not issued to petitioner but to a certain Raul Palencia Salvatierra of Sampaloc, Manila. 14 Epifanio
Deriquito, the records verifier, presented a certification 15 to that effect signed by Edwin C. Roque, chief
records officer of the Firearms and Explosive Division. 16

60
Petitioner was then charged with illegal possession of firearm and ammunition under Presidential
Decree (P.D.) No. 1866, 17 as amended. The Information read:

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

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

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

CONTRARY TO LAW.

Quezon City, Philippines, July 15, 1996.

(Sgd.)

GLORIA VICTORIA C. YAP

Assistant City Prosecutor 18

With the assistance of his counsel de parte, Atty. Oscar Pagulayan, petitioner pleaded not guilty when
arraigned on October 9, 1996. 19 Trial on the merits ensued. EISCaD

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

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

Petitioner recounted that on July 10, 1996, he was fast asleep in the boarding house of his children
located at Sagana Homes, Barangay New Era, Quezon City. 20 He was roused from his slumber when
four (4) heavily armed men in civilian clothes bolted the room. 21 They trained their guns at him 22 and
pulled him out of the room. They then tied his hands and placed him near the faucet. 23 The raiding
team went back inside and searched and ransacked the room. 24 SPO2 Disuanco stood guard outside
with him. 25 Moments later, an operative came out of the room and exclaimed, "Hoy, may nakuha
akong baril sa loob!" 26

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

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

61
Petitioner contended that the police had an axe to grind against him. While still with the Narcotics
Command, he turned down a request of Col. Romulo Sales to white-wash a drug-related investigation
involving friends of the said police officer. Col. Sales was likewise subject of a complaint filed with the
Ombudsman by his wife. Col. Sales was later on appointed as the head of the unit that conducted the
search in his boarding house. 32

SPO3 Timbol, Jr. of the Narcotics Command testified that he issued to petitioner a Memorandum
Receipt dated July 1, 1993 33 covering the subject firearm and its ammunition. This was upon the verbal
instruction of Col. Angelito Moreno. SPO3 Timbol identified his signature 34 on the said receipt. 35

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

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

RTC and CA Dispositions

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

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

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

SO ORDERED. 46

Petitioner moved to reconsider 47 but his motion was denied on August 27, 1998. 48 He appealed to the
CA.

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

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

62
WHEREFORE, with the foregoing MODIFICATION as to the penalty, the decision appealed from is hereby
AFFIRMED in all other respects. cSTDIC

SO ORDERED. 49

His motion for reconsideration 50 having been denied through a Resolution dated August 3, 2004, 51
petitioner resorted to the present petition under Rule 45.

Issues

Petitioner raises the following issues for Our consideration:

I. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN AFFIRMING THE
CONVICTION OF PETITIONER DESPITE THE ABSENCE OF PROOF BEYOND REASONABLE DOUBT.

II. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF FACT AND LAW IN
SUSTAINING THE LEGALITY OF THE SEARCH AND THE VALIDITY AND ADMISSIBILITY OF THE EVIDENCE
OBTAINED THEREFROM DESPITE THE OVERWHELMING PROOF THAT THE SAME IS THE FRUIT OF THE
POISONOUS TREE. cCAIaD

III. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN NOT
UPHOLDING THE REGULARITY AND VALIDITY SURROUNDING THE ISSUANCE OF THE MEMORANDUM
RECEIPTS (SIC) IN FAVOR OF PETITIONER WHICH PROVES HIS INNOCENCE OF THE CRIME CHARGE (SIC).
52 (Underscoring supplied)

Our Ruling

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

The prosecution was able to discharge its burden.

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

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

The Court on several occasions ruled that either the testimony of a representative of, or a certification
from, the Philippine National Police (PNP) Firearms and Explosive Office attesting that a person is not a

63
licensee of any firearm would suffice to prove beyond reasonable doubt the second element of
possession of illegal firearms. 59 The prosecution more than complied when it presented both. DTEAHI

The certification is outside the scope

of the hearsay rule.

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

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

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

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

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

The assessment of credibility of

witnesses lies with the trial court.

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

This contention deserves scant consideration.

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

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

64
the veracity of their testimonies, findings of the trial court are given the highest degree of respect if not
finality. 64 (Underscoring supplied) caIACE

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

Worth noting is the fact that petitioner is a ranking police officer who not only claims to be highly
decorated, 65 but have effected a number of successful arrests 66 as well. Common sense would dictate
that he must necessarily be authorized to carry a gun. We thus agree with the Office of the Solicitor
General that framing up petitioner would have been a very risky proposition. Had the arresting officers
really intended to cause the damnation of petitioner by framing him up, they could have easily "planted"
a more incriminating evidence rather than a gun. That would have made their nefarious scheme easier,
assuming that there indeed was one. SIaHDA

The pieces of evidence show that

petitioner is not legally authorized to

possess the subject firearm and its

five (5) ammunition.

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

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

SPO3 Timbol, Jr. testified that he issued the Memorandum Receipt to petitioner based on the verbal
instruction of his immediate superior, Col. Moreno. 69 However, a reading of Timbol's testimony on
cross-examination 70 would reveal that there was an unusual facility by which said receipt was issued to
petitioner. Its issuance utterly lacked the usual necessary bureaucratic constraints. Clearly, it was issued
to petitioner under questionable circumstances.

Failure to offer an unlicensed

firearm as evidence is not fatal

provided there is competent

testimony as to its existence.

Third, petitioner claims that the subject firearm and ammunition should have been excluded as evidence
because they were not formally offered by the prosecution 71 in violation of Section 34, Rule 132 of the
Rules of Court. 72

65
We note that petitioner contradicted himself when he argued for the validity of the Memorandum
Receipt and, at the same time, for the exclusion in evidence of the subject firearm and its ammunition.
Petitioner's act may result to an absurd situation where the Memorandum Receipt is declared valid,
while the subject firearm and its ammunition which are supposedly covered by the Memorandum
Receipt are excluded as evidence. That would have made the Memorandum Receipt useless. ITAaCc

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

Contrary to petitioner's claim, the subject firearm 73 and its five (5) live ammunition 74 were offered in
evidence by the prosecution. 75 Even assuming arguendo that they were not offered, petitioner's stance
must still fail. The existence of an unlicensed firearm may be established by testimony, even without its
presentation at trial. In People v. Orehuela, 76 the non-presentation of the pistol did not prevent the
conviction of the accused. DHcEAa

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

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

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

Penal and civil liabilities

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

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

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

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

66
As a general rule, penal laws should not have retroactive application, lest they acquire the character of
an ex post facto law. 82 An exception to this rule, however, is when the law is advantageous to the
accused. According to Mr. Chief Justice Araullo, this is "not as a right" of the offender, "but founded on
the very principles on which the right of the State to punish and the combination of the penalty are
based, and regards it not as an exception based on political considerations, but as a rule founded on
principles of strict justice." 83

Although an additional fine of P15,000.00 is imposed by R.A. No. 8294, the same is still advantageous to
the accused, considering that the imprisonment is lowered to prision correccional in its maximum period
84 from reclusion temporal in its maximum period to reclusion perpetua 85 under P.D. No. 1866.
EcDATH

Applying the Indeterminate Sentence Law, prision correccional maximum which ranges from four (4)
years, two (2) months and one (1) day to six (6) years, is the prescribed penalty and will form the
maximum term of the indeterminate sentence. The minimum term shall be one degree lower, which is
prision correccional in its medium period (two [2] years, four [4] months and one [1] day to four [4]
years and two [2] months). 86 Hence, the penalty imposed by the CA is correct. The penalty of four (4)
years and two (2) months of prision correccional medium, as minimum term, to six (6) years of prision
correccional maximum, as maximum term, is in consonance with the Court's ruling in Gonzales v. Court
of Appeals 87 and Barredo v. Vinarao. 88 TEIHDa

As to the subject firearm and its five (5) live ammunition, their proper disposition should be made under
Article 45 of the Revised Penal Code 89 which provides, among others, that the proceeds and
instruments or tools of the crime shall be confiscated and forfeited in favor of the government.

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

SO ORDERED.

Ynares-Santiago, Austria-Martinez, Chico-Nazario and Nachura, JJ., concur.

67
PNB v. Office of the President, G.R. No. 104528, 18 January 1996

[G.R. No. 104528. January 18, 1996.]

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

Santiago, Jr. Vidad Corpus & Associates for petitioner.

The Solicitor General for respondents.

SYLLABUS

1. ADMINISTRATIVE LAW; OFFICE OF THE PRESIDENT; APPEAL THEREFROM MAY BE TAKEN TO THE
COURT OF APPEALS AND SUPREME COURT MAY TAKE COGNIZANCE THEREOF IN THE INTEREST OF
SPEEDY JUSTICE. — Under Revised Administrative Circular No. 1-95, "appeals from judgments or final
orders of the . . . Office of the President . . . may be taken to the Court of Appeals . . ." However, in order
to hasten the resolution of this case, which was deemed submitted for decision three years ago, the
Court resolved to make an exception to the said Circular in the interest of speedy justice.

2. CIVIL LAW; EFFECT OF LAWS; GENERALLY, NO RETROACTIVE EFFECT — Pursuant to Article 4 of

the Civil Code, "(l)aws shall have no retroactive effect, unless the contrary is provided." cdasia

3. ID.; THE SUBDIVISION AND CONDOMINIUM BUYERS' PROTECTIVE DECREE (P.D. NO. 957); GIVEN
RETROACTIVE APPLICATION. — It is obvious and indubitable that P.D. 957 was intended to cover even
those real estate mortgages, like the one at issue here, executed prior to its enactment, and such intent
(as succinctly captured in the preamble) must be given effect if the laudable purpose of protecting
innocent purchasers is to be achieved. While P.D. 957 did not expressly provide for retroactivity in its
entirety, yet the same can be plainly inferred from the unmistakable intent of the law to protect
innocent lot buyers from scheming subdivision developers. As between these small lot buyers and the
gigantic financial institutions which the developers deal with, it is obvious that the law — as an
instrument of social justice — must favor the weak. Likewise noteworthy are certain provisions of P.D.
957, which themselves constitute strong arguments in favor of the retroactivity of P.D. 957 as a whole.
These are Sections 20, 21 and 23 thereof, which by their very terms have retroactive effect and will
impact upon even those contracts and transactions entered into prior to P.D. 957's enactment

4. ID.; ID.; PRESIDENTIAL DECREE NO. 957; REAL ESTATE MORTGAGE MADE BY THE SUBDIVISION
OWNER IN FAVOR OF A BANK DECLARED NULL AND VOID WHERE RIGHTS OF BUYERS CLASHED WITH

68
THE MORTGAGEE BANK'S RIGHT TO FORECLOSE. — The decision of the Court of Appeals in Breta and
Hamor vs. Lao, et al., penned by then Court of Appeals Associate Justice Jose A.R. Melo, now a respected
member of this Court, is persuasive, the factual circumstances therein being of great similarity to the
antecedent facts of the case at bench. By the foregoing citation, this Court adopts by reference the
foregoing as part of this Decision. The real estate mortgage in the above cited case, although constituted
in 1975 and outside the beneficial aegis of P.D. 957, was struck down by the Court of Appeals which
found in favor of subdivision lot buyers when the rights of the latter clashed with the mortgagee bank's
right to foreclose the property. The Court of Appeals in that case upheld the decision of the trial court
declaring the real estate mortgage as null and void.

5. ID.; ID.; ID.; MORTGAGEE BANK OBLIGED TO ACCEPT PAYMENT OF REMAINING UNPAID
AMORTIZATIONS OF SUBDIVISION LOT BUYERS. — As to the second issue of non-privity, petitioner
avers that, in view of the provisions of Article 1311 of the Civil Code, PNB, being a "total stranger to the
land purchase agreement," cannot be made to take the developer's place. We disagree. P.D. 957 being
applicable, Section 18 of said law obliges petitioner Bank to accept the payment of the remaining unpaid
amortizations tendered by private respondents. Privity of contracts as a defense does not apply in this
case for the law explicitly grants to the buyer the option to pay the installment payment for his lot or
unit directly to the mortgagee (petitioner), which is required to apply such payments to reduce the
corresponding portion of the mortgage indebtedness secured by the particular lot or unit being paid for.
And, as stated earlier, this is without prejudice to petitioner Bank's seeking relief against the subdivision
developer.

6. STATUTORY CONSTRUCTION; STATUTES; EFFECT MUST BE IN ACCORDANCE WITH THE PURPOSE

AND INTENT OF THE LAWMAKERS. — The intent of a statute is the law. If a statute is valid it is to have
effect according to the purpose and intent of the lawmaker. The intent is the vital part, the essence of
the law, and the primary rule of construction is to ascertain and give effect to the intent. The intention
of the legislature in enacting a law is the law itself, and must be enforced when ascertained; although it
may not be consistent with the strict letter of the statute. Courts will not follow the letter of a statute
when it leads away from the true intent and purpose of the legislature and to conclusions inconsistent
with the general purpose of the act. Intent is the spirit which gives life to a legislative enactment. In
construing statutes the proper course is to start out and follow the true intent of the legislature and to
adopt that sense which harmonizes best with the context and promotes in the fullest manner the
apparent policy and objects of the legislature. (Sutherland, in his well-known treatise on Statutory
Construction [quoted with approval by this Court in an old case of consequence, Ongsiako vs. Gamboa]).

7. CONSTITUTIONAL LAW; BILL OF RIGHTS; NON-IMPAIRMENT CLAUSE; CANNOT PREVAIL OVER

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

69
RESOLUTION

PANGANIBAN, J p:

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

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

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

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

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

Petitioner bank raised the following issues: cdt

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

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

70
Normally, pursuant to Article 4 of the Civil Code, "(l)aws shall have no retroactive effect, unless the
contrary is provided." However, it is obvious and indubitable that P.D. 957 was intended to cover even
those real estate mortgages, like the one at issue here, executed prior to its enactment, and such intent
(as succinctly captured in the preamble quoted below) must be given effect if the laudable purpose of
protecting innocent purchasers is to be achieved: aisadc

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

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

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

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

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

"The intent of a statute is the law. If a statute is valid it is to have effect according to the purpose and
intent of the lawmaker. The intent is the vital part, the essence of the law, and the primary rule of
construction is to ascertain and give effect to the intent. The intention of the legislature in enacting a
law is the law itself, and must be enforced when ascertained; although it may not be consistent with the
strict letter of the statute. Courts will not follow the letter of a statute when it leads away from the true

71
intent and purpose of the legislature and to conclusions inconsistent with the general purpose of the
act. Intent is the spirit which gives life to a legislative enactment. In construing statutes, the proper
course is to start out and follow the true intent of the legislature and to adopt that sense which
harmonizes best with the context and promotes in the fullest manner the apparent policy and objects of
the legislature." 3

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

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

Likewise noteworthy are certain provisions of P.D. 957, which themselves constitute strong arguments
in favor of the retroactivity of P.D. 957 as a whole. These are Sections 20, 21 and 23 thereof, which by
their very terms have retroactive effect and will impact upon even those contracts and transactions
entered into prior to P.D. 957's enactment: cdtai

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

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

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

"SEC. 23. Non-Forfeiture of Payments. — No installment payment made by a buyer in a

subdivision or condominium project for the lot or unit he contracted to buy shall be forfeited in favor of
the owner or developer when the buyer, after due notice to the owner or developer, desists from

72
further payment due to the failure of the owner or developer to develop the subdivision or
condominium project according to the approved plans and within the time limit for complying with the
same. Such buyer may, at his option, be reimbursed the total amount paid including amortization
interests but excluding delinquency interests, with interest thereon at the legal rate." (Emphasis
supplied)

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

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

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

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

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

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

The decision of the Court of Appeals in Breta and Hamor vs. Lao, et al. 7, penned by then Court of
Appeals Associate Justice Jose A. R. Melo, now a respected member of this Court, is persuasive, the
factual circumstances therein being of great similarity to the antecedent facts of the case at bench:

"Protection must be afforded small homeowners who toil and save if only to purchase on installment a
tiny home lot they can call their own. The consuming dream of every Filipino is to be able to buy a lot,
no matter how small, so that he may somehow build a house. It has, however, been seen of late that
these honest, hard-living individuals are taken advantage of, with the delivery of titles delayed, the
subdivision facilities, including the most essential such as water installations not completed, or worse

73
yet, as in the instant case, after almost completing the payments for the property and after constructing
a house, the buyer is suddenly confronted by the stark reality, contrived or otherwise, in which another
person would now appear to be owner. cdasia

xxx xxx xxx

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

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

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

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

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

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

Privity of contracts as a defense does not apply in this case for the law explicitly grants to the buyer the
option to pay the installment payment for his lot or unit directly to the mortgagee (petitioner), which is
required to apply such payments to reduce the corresponding portion of the mortgage indebtedness

74
secured by the particular lot or unit being paid for. And, as stated earlier, this is without prejudice to
petitioner Bank's seeking relief against the subdivision developer.

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

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

SO ORDERED.

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

75
Commissioner of Internal Revenue v. Philippine Health Care Providers, Inc., G.R. No. 168129, 24 April
2007

[G.R. No. 168129. April 24, 2007.]

COMMISSIONER OF INTERNAL REVENUE, petitioner, vs. PHILIPPINE HEALTH CARE PROVIDERS, INC.,
respondent.

DECISION

SANDOVAL-GUTIERREZ, J p:

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

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

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

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

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

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

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

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

76
On October 20, 1999, respondent filed a protest with the BIR.

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

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

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

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

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

SO ORDERED.

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

In its Resolution 3 dated March 23, 2003, the CTA granted respondent's motion, thus:

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

SO ORDERED.

The CTA held:

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

However, after a careful review of the facts of the case as well as the Law and jurisprudence applicable,
this court resolves to grant petitioner's "Motion for Partial Reconsideration." We are in accord with the
view of petitioner that it is entitled to the benefit of non-retroactivity of rulings guaranteed under

77
Section 246 of the Tax Code, in the absence of showing of bad faith on its part. Section 246 of the Tax
Code provides:

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

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

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

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

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

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

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

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

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

78
The phrase "sale or exchange of service" means the performance of all kinds of services in the
Philippines for a fee, remuneration or consideration, including those performed or rendered by
construction and service contractors. . . .

Section 103 6 of the same Code specifies the exempt transactions from the provision of Section 102,
thus:

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

xxx xxx xxx

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

xxx xxx xxx

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

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

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

From the foregoing, the CTA made the following conclusions:

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

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

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

79
d) Respondent "also enters into contract with clinics, hospitals, medical professionals and then
negotiates with them regarding payment schemes, financing and other procedures in the delivery of
health services."

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

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

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

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

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

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

According to the Court of Appeals, respondent's failure to describe itself as a "health maintenance
organization," which is subject to VAT, is not tantamount to bad faith. We note that the term "health
maintenance organization" was first recorded in the Philippine statute books only upon the passage of

80
"The National Health Insurance Act of 1995" (Republic Act No. 7875). Section 4 (o) (3) thereof defines a
health maintenance organization as "an entity that provides, offers, or arranges for coverage of
designated health services needed by plan members for a fixed prepaid premium." Under this law, a
health maintenance organization is one of the classes of a "health care provider."

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

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

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

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

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

SO ORDERED.

Puno, C.J., Corona, Azcuna and Garcia, JJ., concur.

81
D.M. Consunji vs. CA, G.R. No. 137873, April 20, 2001

[G.R. No. 137873. April 20, 2001.]

D.M. CONSUNJI, INC., petitioner, vs. COURT OF APPEALS and MARIA J. JUEGO, respondents.

Castillo Laman Tan Pantaleon and San Jose Law Offices for petitioner.

Manuel Y. Fausto for respondent.

SYNOPSIS

Jose Juego was a construction worker of D.M. Consunji, Inc. when he fell to his death from the 14th floor
of Renaisance Tower. He was performing his work as a carpenter at the elevator core of the building
when suddenly the platform on which he was on board fell down to the basement of the core. His
widow filed a complaint for damages against D.M. Consunji, Inc. Consunji raised the defense that the
widow availed of the benefits from the State Insurance Fund. After trial, the Regional Trial Court (RTC)
rendered a decision in favor of the widow. On appeal by D.M. Consunji, the Court of Appeals (CA)
affirmed the decision of the RTC in toto. D.M. Consunji seeks the reversal of the CA decision questioning
the admissibility of the police report as evidence of the negligence of the petitioner, the applicability of
the doctrine of res ipsa loquitur, the presumption of negligence under Article 2180 of the Civil Code, and
that the respondent was not precluded from recovering damages under the Civil Code. EASCDH

The Supreme Court ruled that the police report in this case was inadmissible for the purpose of proving
the truth of the statements contained therein but was admissible insofar as it constituted part of the
testimony of the police officer involved. However, such inadmissibility loses relevance in the face of the
application of res ipsa loquitur. The effect of the doctrine is to warrant the presumption that the mere
fall of the elevator was a result of the person having charge of the instrumentality was negligent.
Petitioner in this case was unable to present evidence to rebut the inference or presumption of
negligence arising from the application of res ipsa loquitur. The Court also ruled that the respondent
was not precluded from recovering damages under the Civil Code. There was no showing that she knew
of the remedies available to her when the claim before the ECC was filed. The case was remanded to the
Regional Trial Court to determine whether the award decreed in its decision was more than that of the
ECC. Should the award be greater, payments already made to the private respondent pursuant to the
ECC shall be deducted therefrom. The decision of the Court of Appeals was affirmed. cCHITA

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; HEARSAY RULE; CONSTRUED. — The Rules of Court provide that a
witness can testify only to those facts which he knows of his personal knowledge, that is, which are
derived from his perception. A witness, therefore, may not testify as what he merely learned from
others either because he was told or read or heard the same. Such testimony is considered hearsay and
may not be received as proof of the truth of what he has learned. This is known as the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements. The theory of the hearsay rule is that the many

82
possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the
bare untested assertion of a witness, may be best brought to light and exposed by the test of cross-
examination. The hearsay rule, therefore, excludes evidence that cannot be tested by cross-
examination. ADSIaT

2. ID.; ID.; ID.; EXCEPTION; ENTRIES IN OFFICIAL RECORDS; REQUISITES. — The Rules of Court allow
several exceptions to the rule, among which are entries in official records. Section 44, Rule 130 provides:
Entries in official records made in the performance of his duty by a public officer of the Philippines, or by
a person in the performance of a duty specially enjoined by law are prima facie evidence of the facts
therein stated. In Africa, et al. vs. Caltex (Phil.), Inc., et al., this Court, citing the work of Chief Justice
Moran, enumerated the requisites for admissibility under the above rule: (a) that the entry was made by
a public officer or by another person specially enjoined by law to do so; (b) that it was made by the
public officer in the performance of his duties, or by such other person in the performance of a duty
specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of the
facts by him stated, which must have been acquired by him personally or through official information.

3. ID.; ID.; RES IPSA LOQUITUR; DEFINED AND CONSTRUED. — As a rule of evidence, the doctrine
of res ipsa loquitur is peculiar to the law of negligence which recognizes that prima facie negligence may
be established without direct proof and furnishes a substitute for specific proof of negligence. The
concept of res ipsa loquitur has been explained in this wise: While negligence is not ordinarily inferred
or presumed, and while the mere happening of an accident or injury will not generally give rise to an
inference or presumption that it was due to negligence on defendant's part, under the doctrine of res
ipsa loquitur, which means, literally, the thing or transaction speaks for itself, or in one jurisdiction, that
the thing or instrumentality speaks for itself, the facts or circumstances accompanying an injury may be
such as to raise a presumption, or at least permit an inference of negligence on the part of the
defendant, or some other person who is charged with negligence. . . . where it is shown that the thing or
instrumentality which caused the injury complained of was under the control or management of the
defendant, and that the occurrence resulting in the injury was such as in the ordinary course of things
would not happen if those who had its control or management used proper care, there is sufficient
evidence, or, as sometimes stated, reasonable evidence, in the absence of explanation by the
defendant, that the injury arose from or was caused by the defendant's want of care. One of the
theoretical bases for the doctrine is its necessity, i.e., that necessary evidence is absent or not available.
The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the
instrumentality which causes the injury either knows the cause of the accident or has the best
opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is compelled
to allege negligence in general terms and to rely upon the proof of the happening of the accident in
order to establish negligence. The inference which the doctrine permits is grounded upon the fact that
the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the
defendant but inaccessible to the injured person. It has been said that the doctrine of res ipsa loquitur
furnishes a bridge by which a plaintiff, without knowledge of the cause, reaches over to defendant who
knows or should know the cause, for any explanation of care exercised by the defendant in respect of
the matter of which the plaintiff complains. The res ipsa loquitur doctrine, another court has said, is a

83
rule of necessity, in that it proceeds on the theory that under the peculiar circumstances in which the
doctrine is applicable, it is within the power of the defendant to show that there was no negligence on
his part, and direct proof of defendant's negligence is beyond plaintiff's power. Accordingly, some courts
add to the three prerequisites for the application of the res ipsa loquitur doctrine the further
requirement that for the res ipsa loquitur doctrine to apply, it must appear that the injured party had no
knowledge or means of knowledge as to the cause of the accident, or that the party to be charged with
negligence has superior knowledge or opportunity for explanation of the accident. DITEAc

4. ID.; ID.; ID.; PROCEDURAL EFFECT OF THE DOCTRINE; APPLICATION IN CASE AT BAR. —
Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but
argues that the presumption or inference that it was negligent did not arise since it "proved that it
exercised due care to avoid the accident which befell respondent's husband". Petitioner apparently
misapprehends the procedural effect of the doctrine. As stated earlier, the defendant's negligence is
presumed or inferred when the plaintiff establishes the requisites for the application of res ipsa loquitur.
Once the plaintiff makes out a prima facie case of all the elements, the burden then shifts to defendant
to explain. The presumption or inference may be rebutted or overcome by other evidence and, under
appropriate circumstances a disputable presumption, such as that of due care or innocence, may
outweigh the inference. It is not for the defendant to explain or prove its defense to prevent the
presumption or inference from arising. Evidence by the defendant of say, due care, comes into play only
after the circumstances for the application of the doctrine has been established. ADSTCa

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

6. LABOR AND SOCIAL LEGISLATION; LABOR RELATIONS; DEATH BENEFITS; RECOVERY OF

DAMAGES FROM WORKMEN'S COMPENSATION ACT AND TO PROSECUTE AN ORDINARY CIVIL ACTION;
CHOICE OF ONLY ONE REMEDY SHOULD BE AVAILABLE FOR THE HEIRS; EXCEPTION. — Addressing the
issue of whether the heirs had a choice of remedies, majority of the Court En Banc, following the rule in
Pacaña vs. Cebu Autobus Company, held in the affirmative. We now come to the query as to whether or
not the injured employee or his heirs in case of death have a right of selection or choice of action
between availing themselves of the worker's right under the Workmen's Compensation Act and suing in
the regular courts under the Civil Code for higher damages (actual, moral and exemplary) from the
employers by virtue of the negligence or fault of the employers or whether they may avail themselves
cumulatively of both actions, i.e., collect the limited compensation under the Workmen's Compensation
Act and sue in addition for damages in the regular courts. In disposing of a similar issue, this Court in

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Pacaña vs. Cebu Autobus Company, 32 SCRA 442, ruled that an injured worker has a choice of either to
recover from the employer the fixed amounts set by the Workmen's Compensation Act or to prosecute
an ordinary civil action against the tortfeasor for higher damages but he cannot pursue both courses of
action simultaneously. Nevertheless, the Court allowed some of the petitioners in said case to proceed
with their suit under the Civil Code despite having availed of the benefits provided under the Workmen's
Compensation Act. The Court reasoned: With regard to the other petitioners, it was alleged by Philex in
its motion to dismiss dated May 14, 1968 before the court a quo, that the heirs of the deceased
employees, namely Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted
notices and claims for compensation to the Regional Office No. 1 of the then Department of Labor and
all of them have been paid in full as of August 25, 1967, except Saturnino Martinez whose heirs decided
that they be paid in installments . . . . Such allegation was admitted by herein petitioners in their
opposition to the motion to dismiss dated May 27, 1968 . . . in the lower court, but they set up the
defense that the claims were filed under the Workmen's Compensation Act before they learned of the
official report of the committee created to investigate the accident which established the criminal
negligence and violation of law by Philex, and which report was forwarded by the Director of Mines to
then Executive Secretary Rafael Salas in a letter dated October 19, 1967 only . . . . We hold that although
the other petitioners had received the benefits under the Workmen's Compensation Act, such may not
preclude them from bringing an action before the regular court because they became cognizant of the
fact that Philex has been remiss in its contractual obligations with the deceased miners only after
receiving compensation under the Act. Had petitioners been aware of said violation of government rules
and regulations by Philex, and of its negligence, they would not have sought redress under the
Workmen's Compensation Commission which awarded a lesser amount for compensation. The choice of
the first remedy was based on ignorance or a mistake of fact, which nullifies the choice as it was not an
intelligent choice. The case should therefore be remanded to the lower court for further proceedings.
However, should the petitioners be successful in their bid before the lower court, the payments made
under the Workmen's Compensation Act should be deducted from the damages that may be decreed in
their favor. The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael
Maritime Corporation vs. Avelino, Vda. de Severo vs. Feliciano-Go, and Marcopper Mining Corp. vs.
Abeleda. In the last case, the Court again recognized that a claimant who had been paid under the Act
could still sue under the Civil Code. The Court said: In the Robles case, it was held that claims for
damages sustained by workers in the course of their employment could be filed only under the
Workmen's Compensation Law, to the exclusion of all further claims under other laws. In Floresca, this
doctrine was abrogated in favor of the new rule that the claimants may invoke either the Workmen's
Compensation Act or the provisions of the Civil Code, subject to the consequence that the choice of one
remedy will exclude the other and that the acceptance of compensation under the remedy chosen will
preclude a claim for additional benefits under the other remedy. The exception is where a claimant who
has already been paid under the Workmen's Compensation Act may still sue for damages under the Civil
Code on the basis of supervening facts or developments occurring after he opted for the first remedy.
cda

7. ID.; ID.; ID.; ID.; ID.; WAIVER OF REMEDIES THROUGH ELECTION; EFFECT THEREOF. — When a
party having knowledge of the facts makes an election between inconsistent remedies, the election is

85
final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the absence of
fraud by the other party. The first act of election acts as a bar. Equitable in nature, the doctrine of
election of remedies is designed to mitigate possible unfairness to both parties. It rests on the moral
premise that it is fair to hold people responsible for their choices. The purpose of the doctrine is not to
prevent any recourse to any remedy, but to prevent a double redress for a single wrong. The choice of a
party between inconsistent remedies results in a waiver by election. Hence, the rule in Floresca that a
claimant cannot simultaneously pursue recovery under the Labor Code and prosecute an ordinary
course of action under the Civil Code. The claimant, by his choice of one remedy, is deemed to have
waived the other. Waiver is the intentional relinquishment of a known right. [It] is an act of
understanding that presupposes that a party has knowledge of its rights, but chooses not to assert
them. It must be generally shown by the party claiming a waiver that the person against whom the
waiver is asserted had at the time knowledge, actual or constructive, of the existence of the party's
rights or of all material facts upon which they depended. Where one lacks knowledge of a right, there is
no basis upon which waiver of it can rest. Ignorance of a material fact negates waiver, and waiver
cannot be established by a consent given under a mistake or misapprehension of fact. A person makes a
knowing and intelligent waiver when that person knows that a right exists and has adequate knowledge
upon which to make an intelligent decision. Waiver requires a knowledge of the facts basic to the
exercise of the right waived, with an awareness of its consequences. That a waiver is made knowingly
and intelligently must be illustrated on the record or by the evidence. cCaATD

8. ID.; ID.; ID.; ID.; ID.; ID.; WHEN NULLIFIED; APPLICATION IN CASE AT BAR. — That lack of
knowledge of a fact that nullifies the election of a remedy is the basis for the exception in Floresca. It is
in light of the foregoing principles that we address petitioner's contentions. Waiver is a defense, and it
was not incumbent upon private respondent, as plaintiff, to allege in her complaint that she had availed
of benefits from the ECC. It is, thus, erroneous for petitioner to burden private respondent with raising
waiver as an issue. On the contrary, it is the defendant who ought to plead waiver, as petitioner did in
pages 2-3 of its Answer; otherwise, the defense is waived. It is, therefore, perplexing for petitioner to
now contend that the trial court had no jurisdiction over the issue when petitioner itself pleaded waiver
in the proceedings before the trial court. Does the evidence show that private respondent knew of the
facts that led to her husband's death and the rights pertaining to a choice of remedies? It bears stressing
that what negates waiver is lack of knowledge or a mistake of fact. In this case, the "fact" that served as
a basis for nullifying the waiver is the negligence of petitioner's employees, of which private respondent
purportedly learned only after the prosecutor issued a resolution stating that there may be civil liability.
In Floresca, it was the negligence of the mining corporation and its violation of government rules and
regulations. Negligence, or violation of government rules and regulations, for that matter, however, is
not a fact, but a conclusion of law, over which only the courts have the final say. Such a conclusion binds
no one until the courts have decreed so. It appears, therefore, that the principle that ignorance or
mistake of fact nullifies a waiver has been misapplied in Floresca and in the case at bar. HAECID

9. CIVIL LAW; CIVIL CODE; IGNORANCE OF THE LAW EXCUSES NO ONE FROM COMPLIANCE
THEREWITH (ARTICLE 3); LIMITED TO MANDATORY OR PROHIBITORY LAWS. — The application of Article
3 of the Civil Code is limited to mandatory and prohibitory laws. This may be deduced from the language

86
of the provision, which, notwithstanding a person's ignorance, does not excuse his or her compliance
with the laws. The rule in Floresca allowing private respondent a choice of remedies is neither
mandatory nor prohibitory. Accordingly, her ignorance thereof cannot be held against her. TIaCcD

DECISION

KAPUNAN, J p:

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

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

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

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

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

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

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

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

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

2. P10,000.00 as actual and compensatory damages.

87
3. P464,000.00 for the loss of Jose A. Juego's earning capacity.

4. P100,000.00 as moral damages.

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

SO ORDERED. 2

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

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

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

§ THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA LOQUITOR [sic] IS
APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF PETITIONER.

§ THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED NEGLIGENT UNDER
ARTICLE 2180 OF THE CIVIL CODE, AND

§ THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT PRECLUDED FROM
RECOVERING DAMAGES UNDER THE CIVIL CODE. 3

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

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

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

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

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

88
Entries in official records made in the performance of his duty made in the performance of his duty by a
public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law
are prima facie evidence of the facts therein stated.

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

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

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

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

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

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

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

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

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

89
of the facts therein stated. The underlying reasons for this exceptionary rule are necessity and
trustworthiness, as explained in Antillon v. Barcelon.

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

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

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

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

In any case, the Court holds that portions of PO3 Villanueva's testimony which were of his personal
knowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3 Villanueva
had seen Juego's remains at the morgue, 12 making the latter's death beyond dispute. PO3 Villanueva
also conducted an ocular inspection of the premises of the building the day after the incident 13 and
saw the platform for himself. 14 He observed that the platform was crushed 15 and that it was totally
damaged. 16 PO3 Villanueva also required Garcia and Fabro to bring the chain block to the police
headquarters. Upon inspection, he noticed that the chain was detached from the lifting machine,
without any pin or bolt. 17

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

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

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

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

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

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

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

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

91
the cause of the accident, or that the party to be charged with negligence has superior knowledge or
opportunity for explanation of the accident. 23

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

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

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

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

Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
defendant's negligence is presumed or inferred 25 when the plaintiff establishes the requisites for the
application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements, the
burden then shifts to defendant to explain. 26 The presumption or inference may be rebutted or
overcome by other evidence and, under appropriate circumstances a disputable presumption, such as
that of due care or innocence, may outweigh the inference. 27 It is not for the defendant to explain or
prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of
say, due care, comes into play only after the circumstances for the application of the doctrine has been
established.

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

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

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

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

Article 173 of the Labor Code states:

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

The precursor of Article 173 of the Labor Code, Section 5 of the Workmen's Compensation Act, provided
that: DcCEHI

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

Whether Section 5 of the Workmen's Compensation Act allowed recovery under said Act as well as
under the Civil Code used to be the subject of conflicting decisions. The Court finally settled the matter
in Floresca vs. Philex Mining Corporation, 30 which involved a cave-in resulting in the death of the
employees of the Philex Mining Corporation. Alleging that the mining corporation, in violation of
government rules and regulations, failed to take the required precautions for the protection of the
employees, the heirs of the deceased employees filed a complaint against Philex Mining in the Court of

93
First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the complaint for lack of
jurisdiction. The heirs sought relief from this Court.

Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En Banc, 31
following the rule in Pacaña vs. Cebu Autobus Company, held in the affirmative.

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

In disposing of a similar issue, this Court in Pacaña vs. Cebu Autobus Company, 32 SCRA 442, ruled that
an injured worker has a choice of either to recover from the employer the fixed amounts set by the
Workmen's Compensation Act or to prosecute an ordinary civil action against the tort-feasor for higher
damages but he cannot pursue both courses of action simultaneously. [Emphasis supplied.]

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

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

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

94
the lower court, the payments made under the Workmen's Compensation Act should be deducted from
the damages that may be decreed in their favor. [Emphasis supplied.]

The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime
Corporation vs. Avelino, 32 Vda. de Severo vs. Feliciano-Go, 33 and Marcopper Mining Corp. vs. Abeleda.
34 In the last case, the Court again recognized that a claimant who had been paid under the Act could
still sue under the Civil Code. The Court said: aIHCSA

In the Robles case, it was held that claims for damages sustained by workers in the course of their
employment could be filed only under the Workmen's Compensation Law, to the exclusion of all further
claims under other laws. In Floresca, this doctrine was abrogated in favor of the new rule that the
claimants may invoke either the Workmen's Compensation Act or the provisions of the Civil Code,
subject to the consequence that the choice of one remedy will exclude the other and that the
acceptance of compensation under the remedy chosen will preclude a claim for additional benefits
under the other remedy. The exception is where a claimant who has already been paid under the
Workmen's Compensation Act may still sue for damages under the Civil Code on the basis of
supervening facts or developments occurring after he opted for the first remedy. (Emphasis supplied.)

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

. . . We do not agree that appellee has knowledge of the alleged negligence of appellant as early as
November 25, 1990, the date of the police investigator's report. The appellee merely executed her
sworn statement before the police investigator concerning her personal circumstances, her relation to
the victim, and her knowledge of the accident. She did not file the complaint for "Simple Negligence
Resulting to Homicide" against appellant's employees. It was the investigator who recommended the
filing of said case and his supervisor referred the same to the prosecutor's office. This. is a standard
operating procedure for police investigators which appellee may not have even known. This may explain
why no complainant is mentioned in the preliminary statement of the public prosecutor in her
memorandum dated February 6, 1991, to wit: "Respondent Ferdinand Fabro . . . are being charged by
complaint of "Simple Negligence Resulting to Homicide." It is also possible that the appellee did not
have a chance to appear before the public prosecutor as can be inferred from the following statement in
said memorandum: "Respondents who were notified pursuant to Law waived their rights to present
controverting evidence," thus there was no reason for the public prosecutor to summon the appellee.
Hence, notice of appellant's negligence cannot be imputed on appellee before she applied for death
benefits under ECC or before she received the first payment therefrom. Her using the police
investigation report to support her complaint filed on May 9, 1991 may just be an afterthought after
receiving a copy of the February 6, 1991 Memorandum of the Prosecutor's Office dismissing the criminal

95
complaint for insufficiency of evidence, stating therein that: "The death of the victim is not attributable
to any negligence on the part of the respondents. If at all and as shown by the records this case is civil in
nature." (Emphasis supplied.) Considering the foregoing, We are more inclined to believe appellee's
allegation that she learned about appellant's negligence only after she applied for and received the
benefits under ECC. This is a mistake of fact that will make this case fall under the exception held in the
Floresca ruling. 35

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

. . . . Appellee [Maria Juego] testified that she has reached only elementary school for her educational
attainment; that she did not know what damages could be recovered from the death of her husband;
and that she did not know that she may also recover more from the Civil Code than from the ECC. . . . .
36

Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her
complaint that her application and receipt of benefits from the ECC were attended by ignorance or
mistake of fact. Not being an issue submitted during the trial, the trial court had no authority to hear or
adjudicate that issue."

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

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

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

Waiver is the intentional relinquishment of a known right. 39

[It] is an act of understanding that presupposes that a party has knowledge of its rights, but chooses not
to assert them. It must be generally shown by the party claiming a waiver that the person against whom

96
the waiver is asserted had at the time knowledge, actual or constructive, of the existence of the party's
rights or of all material facts upon which they depended. Where one lacks knowledge of a right, there is
no basis upon which waiver of it can rest. Ignorance of a material fact negates waiver, and waiver
cannot be established by a consent given under a mistake or misapprehension of fact.

A person makes a knowing and intelligent waiver when that person knows that a right exists and has
adequate knowledge upon which to make an intelligent decision. Waiver requires a knowledge of the
facts basic to the exercise of the right waived, with an awareness of its consequences. That a waiver is
made knowingly and intelligently must be illustrated on the record or by the evidence. 40

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

It is in light of the foregoing principles that we address petitioner's contentions.

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

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

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

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

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

97
Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one
from compliance therewith. As judicial decisions applying or interpreting the laws or the Constitution
form part of the Philippine legal system (Article 8, Civil Code), private respondent cannot claim
ignorance of this Court's ruling in Floresca allowing a choice of remedies. AaSHED

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

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

WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine whether the
award decreed in its decision is more than that of the ECC. Should the award decreed by the trial court
be greater than that awarded by the ECC, payments already made to private respondent pursuant to the
Labor Code shall be deducted therefrom. In all other respects, the Decision of the Court of Appeals is
AFFIRMED.

SO ORDERED.

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

98
Cui vs. Arellano University 2 SCRA 205

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

EMETERIO CUI, plaintiff-appellant, vs. ARELLANO UNIVERSITY, defendant-appellee.

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

E. Voltaire Garcia, for defendant-appellee.

SYLLABUS

1. CONTRACTS; STUDENTS AND EDUCATIONAL INSTITUTIONS; SCHOLARSHIPS; STIPULATION

WHEREBY STUDENT CANNOT TRANSFER TO ANOTHER SCHOOL WITHOUT REFUNDING SCHOLARSHIP
CASH NULL AND VOID. — The stipulation in a contract, between a student and the school, that the
student's scholarship is good only if he continues in the same school, and that he waives his right to
transfer to another school without refunding the equivalent of his scholarship in cash, is contrary to
public policy and, hence, null and void, because scholarships are awarded in recognition of merit and to
help gifted students in whom society has an established interest or a first lien, and not to keep
outstanding students in school to bolster its prestige and increase its business potential.

DECISION

CONCEPCION, J p:

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

In the language of the decision appealed from:

"The essential facts of this case are short and undisputed. As established by the agreement of facts
Exhibit X and by the respective oral and documentary evidence introduced by the parties, it appears
conclusive that plaintiff, before the school year 1948-1949 took up preparatory law course in the
defendant University. After finishing his preparatory law course plaintiff enrolled in the College of Law of
the defendant from the school year 1948-1949. Plaintiff finished his law studies in the defendant
university up to and including the first semester of the fourth year. During all the school years in which
plaintiff was studying law in defendant law college, Francisco R. Capistrano, brother of the mother of
plaintiff, was the dean of the College of Law and legal counsel of the defendant university. Plaintiff
enrolled for the last semester of his law studies in the defendant university but failed to pay his tuition
fees, because his uncle Dean Francisco R. Capistrano having severed his connection with defendant and
having accepted the deanship and chancellorship of the College of Law of Abad Santos University,
plaintiff left the defendant's law college and enrolled for the last semester of his fourth year law in the
college of law of the Abad Santos University graduating from the college of law of the latter university.
Plaintiff, during all the time he was studying law in defendant university was awarded scholarship

99
grants, for scholastic merit, so that his semestral tuition fees were returned to him after the ends of
semesters and when his scholarship grants were awarded to him. The whole amount of tuition fees paid
by plaintiff to defendant and refunded to him by the latter from the first semester up to and including
the first semester of his last year in the college of law or the fourth year, is in total P1,033.87. After
graduating in law from Abad Santos University he applied to take the bar examination. To secure
permission to take the bar he needed the transcripts of his records in defendant Arellano University.
Plaintiff petitioned the latter to issue to him the needed transcripts. The defendant refused until after
he had paid back the P1,033.87 which defendant refunded to him as above stated. As he could not take
the bar examination without those transcripts, plaintiff paid to defendant the said sum under protest.
This is the sum which plaintiff seeks to recover from defendant in this case.

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

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

(Sgd.) Emeterio Cui'."

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

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

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

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

that defendant herein received a copy of this memorandum; that plaintiff asked the Bureau of Private
Schools to pass upon the issue on his right to secure the transcript of his record in defendant University,
without being required to refund the sum of P1,033.87; that the Bureau of Private Schools upheld the

100
position taken by the plaintiff and so advised the defendant; and that, this notwithstanding, the latter
refused to issue said transcript of record, unless said refund were made, and even recommended to said
Bureau that it issue a written order directing the defendant to release said transcript of record, "so that
the case may be presented to the court for judicial action". As above stated, plaintiff was, accordingly,
constrained to pay, and did pay under protest, said sum of P1,033.87, in order that he could take the bar
examinations in 1953. Subsequently, he brought this action for the recovery of said amount, aside from
P2,000 as moral damages, P500 as exemplary damages, P2,000 as attorney's fees, and P500 as expenses
of litigation.

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

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

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

"There is one more point that merits refutation and that is whether or not the contract entered into
between Cui and Arellano University on September 10, 1951 was void as against public policy. In the
case of Zeigler vs. Illinois Trust and Savings Bank, 245 Ill. 180, 19 Ann. Case 127, the court said: 'In
determining a public policy of the state, courts are limited to a consideration of the Constitution, the
judicial decisions, the statutes, and the practice of government officers.' It might take more than a
government bureau or office to lay down or establish a public policy, as alleged in your communication,
but courts consider the practices of government officials as one of the four factors in determining a
public policy of the state. It has been consistently held in America that under the principles relating to

101
the doctrine of public policy, as applied to the law of contracts, courts of justice will not recognize or
uphold a transaction which in its object, operation, or tendency, is calculated to be prejudicial to the
public welfare, to sound morality, or to civic honesty (Ritter vs. Mutual Life Ins. Co., 169 U. S. 139;
Heding vs. Gallagher, 64 L.R.A. 811; Veazy vs. Allen, 173 N.Y. 359). If Arellano University understood
clearly the real essence of scholarships and the motives which prompted this office to issue
Memorandum No. 38, s. 1949, it should have not entered into a contract of waiver with Cui on
September 10, 1951, which is a direct violation of our Memorandum and an open challenge to the
authority of the Director of Private Schools because the contract was repugnant to sound morality and
civic honesty. And finally, in Gabriel vs. Monte de Piedad, Off. Gazette Supp. Dec. 6, 1941, p. 67 we read:
'In order to declare a contract void as against public policy, a court must find that the contract as to
consideration or the thing to be done, contravenes some established interest of society, or is
inconsistent with sound policy and good morals, or tends clearly to undermine the security of individual
rights.' The policy enunciated in Memorandum No. 33, s. 1949 is sound policy. Scholarships are awarded
in recognition of merit not to keep outstanding students in school to bolster its prestige. In the
understanding of that university scholarships award is a business scheme designed to increase the
business potential of an educational institution. Thus conceived it is not only inconsistent with sound
policy but also good morals. But what is morals? Manresa has this definition. It is good customs; those
generally accepted principles of morality which have received some kind of social and practical
confirmation. The practice of awarding scholarships to attract students and keep them in school is not
good customs nor has it received some kind of social and practical confirmation except in some private
institutions as in Arellano University. The University of the Philippines which implements Section 5 of
Article XIV of the Constitution with reference to the giving of free scholarships to gifted children, does
not require scholars to reimburse the corresponding value of the scholarships if they transfer to other
schools. So also with the leading colleges and universities of the United States after which our
educational practices or policies are patterned. In these institutions scholarships are granted not to
attract and to keep brilliant students in school for their propaganda value but to reward merit or help
gifted students in whom society has an established interest or a first lien." (Emphasis supplied.)

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

Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon, De Leon and Natividad, JJ., concur.

Bautista Angelo, J., reverses his vote.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. L-14860 May 30, 1961

102
In re Tan v. Republic

EN BANC

[G.R. No. L-14860. May 30, 1961.]

IN THE MATTER OF THE PETITION FOR ADMISSION TO PHILIPPINE CITIZENSHIP, ZACARIAS G. TAN,
petitioner-appellee, vs. REPUBLIC OF THE PHILIPPINES, oppositor-appellant.

J. Gonzales Chung Jr. for petitioner-appellee.

Solicitor General for oppositor-appellant.

SYLLABUS

1. CITIZENSHIP; NATURALIZATION; AMENDED PETITIONS; WHEN ANOTHER PUBLICATION IS

NECESSARY. — The amendment to the petition to the effect that applicant completed his elementary
and secondary education in schools recognised by the Government, is a material fact which entitles
petitioner to exemption from filing a declaration of intention. For this reason, the fact alleged in the
amendment should be published to enable the public to furnish the material evidence and information
to the Government regarding such qualification of the petitioner. Where the amended petition was not
published according to law, the court loses jurisdiction to hear and grant the petition, because Section 1
of Republic Act No. 530 provides that no petition for naturalization should be heard until after six
months from the date of the last publication. (Kiat Chun Tan vs. Republic, 92 Phil., 987.)

2. ID.; ID.; REQUIREMENT AS TO LUCRATIVE INCOME; P120.00 MONTHLY INCOME NOT

SUFFICIENT. — Where petitioner has an occupation and a monthly income of P120.00 therefrom, his
occupation cannot be considered as sufficiently lucrative because of the high cost of living now
prevailing. (Swee Din Tan vs. Republic, 109 Phil., 287; Republic vs. Lim, L-3030, Jan. 31, 1951; Pang Kok
Hua vs. Republic, 91, Phil., 254.)

3. ID.; ID.; ID.; WHEN PARENT'S CERTIFICATION IS DOUBTFUL. — The fact that his own father is
petitioner's employer, and that petitioner is still living with him, makes doubtful the truth of the father's
certification as to petitioner's employment, and gives rise to the suspicion that he was employed by his
father, if it were true that he was, only for the purpose of the petition.

4. ID.; ID.; TWO-YEAR PERIOD AFTER PROMULGATION OF DECISION; WHEN DECISION IS

OBJECTIONABLE. — Where the dispositive part of the decision gives the impression that the petitioner
can take his oath without waiting for the two-year period provided by law, because it directs the clerk of
court to forward the papers to the different government offices as soon as possible, the said decision is
objectionable, because it is contrary to the provisions of Republic Act No. 530, in that it allows the
petitioner to be naturalized 30 days after the promulgation of the decision.

DECISION

LABRADOR, J p:

103
Appeal from a decision of the Court of First Instance of Leyte, Hon. Gaudencio Cloribel, presiding, finding
Zacarias G. Tan, a Chinese citizen, qualified for admission as citizen of the Philippines.

The facts necessary for the resolution of the appeal are briefly as follows: On May 31, 1956, Zacarias G.
Tan filed a petition for naturalization, alleging, among other things, that he is an employee in a business
concern at Maasin, Leyte, since May 15, 1956, with a monthly salary of P120.00; that he was born on
November 5, 1933 in Maasin and as a citizen of Nationalist China; that he is not suffering from any
incurable contagious disease; that it is his intention in good faith to become a citizen of the Philippines
and to renounce absolutely and forever all allegiance and fidelity to any foreign prince, potentate, state,
or sovereignty, and particularly to the Republic of China; that he has all the qualifications and none of
the disqualifications which bar him from becoming a citizen of the Philippines; that Miguel Orito, Sr. and
Pedro M. Flores, both of Maasin, Leyte and Filipino citizens, are his witnesses. He prays that he be
admitted a citizen of the Philippines. No declaration of intention was submitted by the petitioner with
his application.

The Republic filed a motion to dismiss the petition for failure to allege therein such of petitioner's
educational qualifications as would exempt him from filing a declaration of intention. Acting upon the
motion the lower court on May 8, 1957, ordered the amendment of the petition to include the
necessary allegations. In compliance with the order, petitioner on May 20, 1957 filed his amended
petition, incorporating in paragraph 4 thereof the phrase "and I have completed my elementary and
secondary education in schools recognized by the Philippine Government". This amended petition was
admitted by the lower court. A motion for reconsideration of the order, on the ground that a
republication of the amended petition is necessary before the Court proceed with the trial, was denied,
and so the hearing on the case was continued.

On November 18, 1957, the lower court, rendered the decision appealed from. In said decision the court
found that petitioner has completed his elementary education in the public schools duly recognized by
the Government; that he is not afflicted with any contagious and incurable disease; that he will
renounce allegiance and loyalty to the Republic of Nationalist China of which he is a citizen; that he is
employed by Tan Yu Chin at the rate of P120.00 a month; that he possesses all the qualifications to
become a citizen of the Philippines and none of the disqualifications. The court granted the petition and
directed the Clerk of Court to forward "as soon as possible" copies of the decision and all pertinent
papers in connection with the case to the Solicitor General, the National Bureau of Investigation,
Philippine Constabulary, the Commissioner of Immigration and the Local Civil Registrar of Maasin, Leyte.

Against the above decision, the Solicitor General has prosecuted this appeal before this Court.

The first ground for assailing the correctness and validity of the decision is that the lower court had no
jurisdiction to try the naturalization case because the amended petition was not republished. An
examination of the record discloses that although the original petition for naturalization was published
in the Official Gazette and in a newspaper of general circulation, the amended petition was not. The
amendment, i. e., that applicant completed his elementary and secondary education in schools
recognized by the Government, is a material fact which entitles petitioner to exemption from filing a

104
declaration of intention. The fact alleged in the amendment should be made known to the public to
enable the latter to furnish the material evidence and information to the Government regarding such
qualification of the petitioner. Inasmuch as the amended petition was not published in accordance with
law and Section 1 of Republic Act No. 530 provides that no petition for naturalization should be heard
until after six months from the date of the last publication, the court below did not have jurisdiction to
hear the amended petition and grant the same. (Kiat Chun Tan vs. Republic, G.R. No. L-4802, April 29,
1953.)

As to the merits of the petition, upon consideration of the evidence at the trial, we find no credible
proof to sustain the lower court's finding that the petitioner has a lucrative profession or occupation.
Except for the unworn certification of Tan Yu Chin, petitioner's father, and petitioner's own testimony,
no other evidence was presented to prove petitioner's alleged income of P120.00 a month. This Court is
not bound by a mere statement of the petitioner. The certification issued by petitioner's own father is
incompetent, not only because it is hearsay but also because it is not sworn to. Moreover, the fact that
his own father is his employer and that he is still living with him makes doubtful the truth of petitioner's
employment and gives rise to the suspicion that he was employed by his father, if it were true that he
was, only for the purpose of this petition.

But even if we concede that petitioner has an occupation because of his supposed monthly income of
P120.00, still his occupation cannot be considered as sufficiently lucrative because of the high cost of
living now prevailing (Swee Din Tan vs. Republic, G.R. No. L-13177, August 31, 1960; Republic vs. Lim, L-
3030, January 31, 1951; Pang Kok Hua vs. Republic, L-5047, May 8, 1952.) The second ground of the
Republic in assailing the decision of the lower court is therefore meritorious.

The third ground of the Solicitor General's appeal is that the decision is contrary to the provisions of
Republic Act No. 530, in that it allows the petitioner to be naturalized 30 days after the promulgation of
the decision. This argument is also well founded. The dispositive part of the decision gives the
impression that the petitioner can take his oath without waiting for the two-year period provided for by
law because it directs the clerk of court to forward the papers to the different government offices as
soon as possible. The decision is apparently objectionable on this ground.

In view of the foregoing considerations, we find that the court below exceeded its jurisdiction in hearing
the petition as amended; and that petitioner is not qualified for admission for naturalization because of
lack of a lucrative occupation. The decision is hereby reversed and the petition dismissed, with costs
against the petitioner.

Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes, Dizon, De Leon and Natividad,
JJ., concur.

Barrera, J., took no part.

105
Mecano v. COA, G.R. No. 103982, 11 December 1992

[G.R. No. 103982. December 11, 1992.]

ANTONIO A. MECANO, petitioner, vs. COMMISSION ON AUDIT, respondent.

SYLLABUS

1. STATUTORY CONSTRUCTION; STATUTES; KINDS OF REPEALS. — The question of whether a

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

2. ID.; ID.; REPEALS BY IMPLICATION; NECESSITY OF A CLEAR INDICATION OF LEGISLATIVE PURPOSE

TO REPEAL. — The fact that a later enactment may relate to the same subject matter as that of an
earlier statute is not of itself sufficient to cause an implied repeal of the prior act, since the new statute
may merely be cumulative or a continuation of the old one. What is necessary is a manifest indication of
legislative purpose to repeal. Repeal by implication proceeds on the premise that where a statute of
later date clearly reveals an intention on the part of the legislature to abrogate a prior act on the
subject, that intention must be given effect. Hence, before there can be a repeal, there must be a clear
showing on the part of the lawmaker that the intent in enacting the new law was to abrogate the old
one. The intention to repeal must be clear and manifest; otherwise, at least, as a general rule, the later
act is to be construed as a continuation of, and not a substitute for, the first act and will continue so far
as the two acts are the same from the time of the first enactment.

3. ID.; ID.; ID.; CATEGORIES THEREOF. — There are two categories of repeal by implication. The
first is where provisions in the two acts on the same subject matter are in an irreconcilable conflict, The
later act to the extent of the conflict constitutes an implied repeal of the earlier one. The second is if the
later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will
operate to repeal the earlier law. Implied repeal by irreconcilable inconsistency takes place when the
two statutes cover the same subject matter; they are so clearly inconsistent and incompatible with each
other that they cannot be reconciled or harmonized; and both cannot be given effect, that is, that one
law cannot be enforced without nullifying the other. The second category of repeal — the enactment of
a statute revising or codifying the former laws on the whole subject matter. This is only possible if this
revised statute or code was intended to cover the whole subject to be a complete and perfect system in
itself. It is the rule that a subsequent statute is deemed to repeal a prior law if the former revises the
whole subject matter of the former statute. When both intent and scope clearly evince the idea of a
repeal, then all parts and provisions of the prior act that are omitted from the revised act are deemed
repealed. Furthermore, before there can be an implied repeal under this category, it must be the clear
intent of the legislature that the later act be the substitute to the prior act.

106
4. ID.; ID.; ID.; ID.; NOT IMPLIED REPEAL OF SECTION 699 OF THE REVISED ADMINISTRATIVE CODE
BY ADMINISTRATIVE CODE OF 1987; CASE AT BAR. — Comparing the two Codes, it is apparent that the
new Code does not cover nor attempt to cover the entire subject matter of the old Code. There are
several matters treated in the old Code which are not found in the new Code, such as the provisions on
notaries public, the leave law, the public bonding law, military reservations, claims for sickness benefits
under Section 699, and still others. Moreover, the COA failed to demonstrate that the provisions of the
two Codes on the matter of the subject claim are in an irreconcilable conflict. In fact, there can be no
such conflict because the provision on sickness benefits of the nature being claimed by petitioner has
not been restated in the Administrative Code of 1987.

5. ADMINISTRATIVE LAW; ADMINISTRATIVE CONSTRUCTION AND INTERPRETATION OF LAWS;

WEIGHT OF OPINIONS OF THE SECRETARY OF JUSTICE ON STATUTES IN PARI MATERIA; CASE AT BAR. —
According to Opinion No. 73, S. 1991 of the Secretary of Justice, what appears clear is the intent to cover
only those aspects of government that pertain to administration, organization and procedure,
understandably because of the many changes that transpired in the government structure since the
enactment of the RAC decades of years ago. The COA challenges the weight that this opinion carries in
the determination of this controversy inasmuch as the body which had been entrusted with the
implementation of this particular provision has already rendered its decision. The COA relied on the rule
in administrative law enunciated in the case of Sison vs. Pangramuyen that in the absence of palpable
error or grave abuse of discretion, the Court would be loathe to substitute its own judgment for that of
the administrative agency entrusted with the enforcement and implementation of the law. This will not
hold water. This principle is subject to limitations. Administrative decisions may be reviewed by the
courts upon a showing that the decision is vitiated by fraud, imposition or mistake. It has been held that
Opinions of the Secretary and Undersecretary of Justice are material in the construction of statutes in
pari materia.

6. STATUTORY CONSTRUCTION; REPEALS BY IMPLICATION NOT FAVORED. — Lastly, it is a well-

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

7. LABOR CODE; ARTICLE 173 THEREOF; EMPLOYEES COMPENSATION; PAYMENT OF

COMPENSATION THEREUNDER NOT A BAR TO RECOVERY OF BENEFITS UNDER SEC. 699 OF THE REVISED
ADMINISTRATIVE CODE. — Regarding respondent's contention that recovery under this subject section

107
shall bar the recovery of benefits under the Employees' Compensation Program, the same cannot be
upheld. The second sentence of Article 173, Chapter II, Title II (dealing on Employees' Compensation and
State Insurance Fund), Book IV of the Labor Code, as amended by P.D. 1921, expressly provides that "the
payment of compensation under this Title shall not bar the recovery of benefits as provided for in
Section 669 of the Revised Administrative Code . . . whose benefits are administered by the system
(meaning SSS or GSIS) or by other agencies of the government."

DECISION

CAMPOS, JR., J p:

Antonio A. Mecano, through a petition for certiorari, seeks to nullify the decision of the Commission on
Audit (COA, for brevity) embodied in its 7th Indorsement, dated January 16, 1992, denying his claim for
reimbursement under Section 699 of the Revised Administrative Code (RAC), as amended, in the total
amount of P40,831.00.

Petitioner is a Director II of the National Bureau of Investigation (NBI). He was hospitalized for
cholecystitis from March 26, 1990 to April 7, 1990, on account of which he incurred medical and
hospitalization expenses, the total amount of which he is claiming from the COA.

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

"SECTION 699. Allowances in case of injury, death, or sickness incurred in performance of duty. —
When a person in the service of the national government or in the service of the government of a
province, city, municipality or municipal district is so injured in the performance of duty as thereby to
receive some actual physical hurt or wound, the proper Head of Department may direct that absence
during any period of disability thereby occasioned shall be on full pay, though not more than six months,
and in such case he may in his discretion also authorize the payment of the medical attendance,
necessary transportation, subsistence and hospital fees of the injured person. Absence in the case
contemplated shall be charged first against vacation leave, if any there be.

xxx xxx xxx

"In case of sickness caused by or connected directly with the performance of some act in the line of
duty, the Department head may in his discretion authorize the payment of the necessary hospital fees."
LLjur

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

108
However, then Undersecretary of Justice Silvestre H. Bello III, in a 4th Indorsement dated November 21,
1990, returned petitioner's claim to Director Lim, having considered the statements of the Chairman of
the COA in its 5th Indorsement dated 19 September 1990, to the effect that the RAC being relied upon
was repealed by the Administrative Code of 1987.

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

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

Eventually, petitioner's claim was returned by Undersecretary of Justice Eduardo Montenegro to

Director Lim under a 9th Indorsement dated February 7, 1992, with the advice that petitioner "elevate
the matter to the Supreme Court if he so desires."

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

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

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

109
The question of whether a particular law has been repealed or not by a subsequent law is a matter of
legislative intent. The lawmakers may expressly repeal a law by incorporating therein a repealing
provision which expressly and specifically cites the particular law or laws, and portions thereof, that are
intended to be repealed. 3 A declaration in a statute, usually in its repealing clause, that a particular and
specific law, identified by its number or title, is repealed is an express repeal; all others are implied
repeals. 4

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

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

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

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

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

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

Comparing the two Codes, it is apparent that the new Code does not cover nor attempt to cover the
entire subject matter of the old Code. There are several matters treated in the old Code which are not

110
found in the new Code, such as the provisions on notaries public, the leave law, the public bonding law,
military reservations, claims for sickness benefits under Section 699, and still others.

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

"WHEREAS, the effectiveness of the Government will be enhanced by a new Administrative Code which
incorporates in a unified document the major structural, functional and procedural principles and rules
of governance; and

xxx xxx xxx"

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

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

We come now to the second category of repeal — the enactment of a statute revising or codifying the
former laws on the whole subject matter. This is only possible if this revised statute or code was
intended to cover the whole subject to be a complete and perfect system in itself. It is the rule that a
subsequent statute is deemed to repeal a prior law if the former revises the whole subject matter of the
former statute. 14 When both intent and scope clearly evince the idea of a repeal, then all parts and
provisions of the prior act that are omitted from the revised act are deemed repealed. 15 Furthermore,
before there can be an implied repeal under this category, it must be the clear intent of the legislature
that the later act be the substitute to the prior act. 16

According to Opinion No. 73, S. 1991 of the Secretary of Justice, what appears clear is the intent to cover
only those aspects of government that pertain to administration, organization and procedure,
understandably because of the many changes that transpired in the government structure since the
enactment of the RAC decades of years ago. The COA challenges the weight that this opinion carries in
the determination of this controversy inasmuch as the body which had been entrusted with the
implementation of this particular provision has already rendered its decision. The COA relied on the rule
in administrative law enunciated in the case of Sison vs. Pangramuyen 17 that in the absence of palpable
error or grave abuse of discretion, the Court would be loathe to substitute its own judgment for that of
the administrative agency entrusted with the enforcement and implementation of the law. This will not

111
hold water. This principle is subject to limitations. Administrative decisions may be reviewed by the
courts upon a showing that the decision is vitiated by fraud, imposition or mistake. 18 It has been held
that Opinions of the Secretary and Undersecretary of Justice are material in the construction of statutes
in pari materia. 19

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

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

Regarding respondent's contention that recovery under this subject section shall bar the recovery of
benefits under the Employees' Compensation Program, the same cannot be upheld. The second
sentence of Article 173, of the Labor Code, as amended by P.D. 1921, expressly provides that "the
payment of compensation under this Title shall not bar the recovery of benefits as provided for in
Section 669 of the Revised Administrative Code xxx whose benefits are administered by the system
(meaning SSS or GSIS) or by other agencies of the government."

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

SO ORDERED.

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

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

112
People v. Licera G.R. No. L-39990, July 2, 1975

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

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAFAEL LICERA, defendant-appellant.

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

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

SYNOPSIS

In the municipal court, defendant was charged with the offenses of illegal possession of firearm and
assault upon an agent of a person in authority. Found guilty of the first charge, he appealed to the Court
of First Instance of the province. The second case against him was forwarded to the same court where
the parties agreed to a joint trial of the two cases but was only convicted of illegal possession of firearm.
Plaintiff brought the case to the Court of Appeals invoking as his legal jurisdiction for his possession of
firearm his appointment as a secret agent by the Governor of Batangas. He claimed that as secret agent
he was a "peace officer" and, thus, pursuant to People vs. Macarandang (L-12081, Dec. 23, 1959), he
was exempt from the requirements relating to issuance of license to possess. He alleged that the lower
court erred in relying on the later case of People vs. Mapa (L-22301, Aug. 30, 1967), which held that
Section 879 of the Revised Administrative Code provides no exemption for persons appointed as secret
agents by provincial governors for the requirements relating to firearms licenses. The case was certified
to this Court on the ground that a question of law was involved.

The Supreme Court held that pursuant to the Macarandang rule obtaining not only at the time of
defendant's appointment as secret agent, which appointment included a grant of authority to possess
the firearm, but as well as at the time of his apprehension, defendants incurred no criminal liability for
possession of the said rifle, notwithstanding his non-compliance with the legal requirements relating to
firearm licenses.

SYLLABUS

1. COURT DECISIONS; PRINCIPLE OF STARE DECISIS. — Article 8 of the Civil Code of the Philippines
decrees that judicial decisions applying or interpreting the laws of the Constitution form part of this
jurisdiction's legal system. These decisions, although in themselves are not laws, constitute evidence of
what the laws mean. The application or interpretation merely establishes the contemporaneous
legislative intent that the construed law purports to carry into effect.

2. ILLEGAL POSSESSION OF FIREARMS; DOCTRINE EXEMPTING SECRET AGENTS FROM THE

FIREARM LICENSE REQUIREMENT, ABANDONED. — The rule enunciated in Macarandang (106 Phil. 713)
to the effect that the appointment of a civilian as a "secret agent to assist in the maintenance of peace
and order campaigns and detection of crimes sufficiently puts him within the category of a 'peace
officer' equivalent to a member of the municipal police" whom Section 879 of the Revised

113
Administrative Code exempts from the requirements relating to firearms licenses, had been revoked by
the rule in Mapa (L-22301, August 30, 1967) which held that said section provides no exemption for
persons appointed as secret agents by provincial governors from the firearm license requirement.

3. CONSTITUTIONAL LAW; EX POST FACTO LAW; CONSTITUTIONAL GUARANTEE AGAINST EX POST

FACTO LAW APPLIED TO JUDICIAL DOCTRINES. — Where a new doctrine abrogates an old rule, the new
doctrine should operate prospectively only and should not adversely affect those favored by the old
rule, especially those who relied thereon and acted on the faith thereof. This holds more especially true
in the application or interpretation of statutes in the field of penal law, for, in this area, more than in any
other it is imperative that the punishability of an act be reasonably foreseen for the guidance of society.

4. ID.; ID.; ILLEGAL POSSESSION OF FIREARMS; DOCTRINE OBTAINING AT THE TIME OF POSSESSION
OF FIREARM BY SECRET AGENT APPLIES. — Where the rule obtaining not only at the time of his
appointment as secret agent, but as well as at the time of his apprehension, accused as such secret
agent was exempt from the firearm license requirements under Section 879 of the Revised
Administrative Code and therefore incurred no criminal liability for possession of the firearm, a
subsequent rule holding that said law does not exempt a secret agent from the firearm license
requirement shall not adversely affect said accused who was favored by the abandoned doctrine.

DECISION

CASTRO, J p:

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

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

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

On August 14, 1968 the court a quo rendered judgment acquitting Licera of the charge of assault upon
an agent of a person in authority, but convicting him of illegal possession of firearm, sentencing him to

114
suffer five years of imprisonment, and ordering the forfeiture of the Winchester rifle in favor of the
Government.

Licera's appeal to the Court of Appeals was certified on October 16, 1974 to this Court as involving only
one question of law.

Licera invokes as his legal justification for his possession of the Winschester rifle his appointment as
secret agent on December 11, 1961 by Governor Feliciano Leviste of Batangas. He claims that as secret
agent, he was a "peace officer" and, thus, pursuant to People vs. Macarandang, 1 was exempt from the
requirements relating to the issuance of license to possess firearms. He alleges that the court a quo
erred in relying on the later case of People vs. Mapa 2 which held that section 879 of the Revised
Administrative Code provides no exemption for persons appointed as secret agents by provincial
governors from the requirements relating to firearm licenses.

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

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

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

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

115
Pursuant to the Macarandang rule obtaining not only at the time of Licera's appointment as secret
agent, which appointment included a grant of authority to possess the Winchester rifle, but as well at
the time as of his apprehension, Licera incurred no criminal liability for possession of the said rifle,
notwithstanding his non-compliance with the legal requirements relating to firearm licenses.

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

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

Teehankee, J., is on leave.

116
Chu Jan vs. Bernas, 34 Phil 631 (1916)

[G.R. No. 10010. August 1, 1916.]

CHU JAN, plaintiff-appellee, vs. LUCIO BERNAS, defendant-appellant.

Sulpicio V. Cea for appellant.

No appearance for appellee.

SYLLABUS

JUDGMENT; DISMISSAL OF ACTION. — Ignorance of the special law applicable to a case does not justify
the court in terminating the proceeding by dismissing it without a decision.

DECISION

ARAULLO, J p:

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

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

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

117
The ignorance of the court or his lack of knowledge regarding the law applicable to a case submitted to
him for decision, the fact that the court does not know the rules applicable to a certain matter that is
the subject of an appeal which must be decided by him and his not knowing where to find the law
relative to the case, are not reasons that can serve to excuse the court for terminating the proceedings
by dismissing them without deciding the issues. Such an excuse is the less acceptable because,
foreseeing that a case might arise to which no law would be exactly applicable, the Civil Code, in the
second paragraph of article 6, provides that the customs of the place shall be observed, and, in the
absence thereof, the general principles of law.

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

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

Moreland, J., did not take part.

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People vs. Purisima, G.R. Nos. L-42050-66, L-46229-32, L-46313-16, L-46997, 20 November 1978

[G.R. Nos. 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. PAREÑO, 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 NUÑEZ, 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.

DECISION

MUÑOZ PALMA, J p:

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

119
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 14th 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 6-1/2 inches and a wooden handle of 5-1/4
inches, or an overall length of 11-3/4 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. cdphil

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

"THE PEOPLE OF THE PHILIPPINES, plaintiff, versus REYNALDO LAQUI Y AQUINO, accused.

CRIM. CASE NO. 29677

VIOL. OF PAR. 3,

PD 9 IN REL. TO LOI

No. 266 of the Chief

Executive dated April 1, 1975

"INFORMATION

"The undersigned accuses REYNALDO LAQUI Y AQUINO of a VIOLATION OF PARAGRAPH 3,

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

"That on or about the 28th day of January, 1977, in the City of Manila, Philippines, the said accused did
then and there wilfully, unlawfully and knowingly carry outside of his residence a bladed and pointed
weapon, to wit: an ice pick with an overall length of about 8 1/2 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

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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 Honorable 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.

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

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

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

"xxx xxx xxx

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

"xxx xxx xxx

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

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

"This possibility cannot be discounted if Presidential Decree No. 9 were to be interpreted and applied in
the manner that 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.

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"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: LLpr

". . . We believe that to constitute an offense under the aforecited 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 and 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.

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"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 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:

"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, if 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, or 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 possess 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 contiguous objects or of causing injury or death of a
persons and any person convicted thereof shall be punished by imprisonment ranging from ten to
fifteen years as a Military Court/Tribunal/Commission may direct.

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

"4. When the violation penalized in the preceding paragraphs 2 and 3 is committed during the
commission of or for the purpose of committing, any other crime, the penalty shall be imposed upon the
offender in its maximum extent, in addition to the penalty provided for the particular offenses
committed or intended to be committed.

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

"(SGD) FERDINAND E. MARCOS

President

Republic of the Philippines"

D — The arguments of the People —

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

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

E — Our Ruling on the matter —

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

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

Pursuant to the above, Section 5, Rule 110 of the Rules of Court, expressly requires that for a complaint
or information to be sufficient it must, inter alia, state the designation of the offense by the statute, and

126
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 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: cdrep

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

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

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

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

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

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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. cdphil

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, and
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)

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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 all 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, . . . ."

129
"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 Compañia 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. LLjur

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. 9a

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

130
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. v. 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

131
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 within the time 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. prcd

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]).

132
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:

133
[I] concur(s) 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 ., concurring:

[I] concur(s) with Justice Barredo in that under the information, the accused can be validly convicted of
violating Sec. 26 of Act No. 1780 or the city or town ordinances on carrying concealed weapons.

CONCEPCION JR., J ., concurring:

[I] concur(s) with the additional observation that accused could properly be convicted of a violation of
Act 1780 of the Philippine Commission or of the ordinance.

134
Martinez vs. Van Buskirk, 18 Phil 79 (1910)

[G.R. No. 5691. December 27, 1910.]

S. D. MARTINEZ and his wife, CARMEN ONG DE MARTINEZ, plaintiffs-appellees, vs. WILLIAM VAN
BUSKIRK, defendant-appellant.

Lionel D. Hargis for appellant.

Sanz and Oppisso for appellee.

SYLLABUS

MASTER AND SERVANT; DRIVERS OF HORSES; CUSTOM AND USAGE; NEGLIGENCE. — A coachman or
driver, who had driven the horses composing his team for a considerable time, during which the animals
has shown no disposition to become unruly, left his team as usual and was assisting in unloading the
wagon when the horses bolted and running into the plaintiffs' carriage caused personal injuries to the
plaintiff and damage to the vehicle. It was further shown that, to leave teams under like circumstances
and to assist in unloading the wagon, is the custom of drivers in the city and that the custom is
sanctioned by employers. Held: That acts, the performance of which has not proven destructive or
injurious and which have been generally acquiesced in by society for so long a time as to have ripened
into a custom, can not be held to be unreasonable or imprudent and that, under the circumstances, the
driver was not guilty of negligence in so leaving his team while assisting in unloading his wagon.

DECISION

MORELAND, J p:

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

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

xxx xxx xxx

"These facts are not dispute, but the defendant presented evidence to the effect that the cochero, who
was driving his delivery wagon at the time the accident occurred, was a good servant and was

135
considered a safe and reliable cochero; that the delivery wagon had sent to deliver some forage at Paco
Livery Stable on Calle Herran, and that for the purpose of delivery thereof the cochero driving the team
as defendant's employee tied the driving lines of the horses to the front end of the delivery wagon and
then went back inside of the wagon for the purpose of unloading the forage to be delivered; that while
unloading the forage and in the act of carrying some of it out, another vehicle drove by, the driver of
which cracked a whip and made some other noises, which frightened the horses attached to the delivery
wagon and they ran away, and the driver was thrown from the inside of the wagon out through the rear
upon the ground and was unable to stop the horses; that the horses then ran up and on which street
they came into collision with the carromata in which the plaintiff, Carmen Ong de Martinez, was riding."

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

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

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

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

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

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

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

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

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

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

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

136
Passing the question whether or not an employer who has furnished a gentle and tractable team and a
trusty and capable driver is, under the last paragraph of the above provisions, liable for the negligence
of such driver in handling the team, we are of the opinion that the judgment must be reversed upon the
ground that the evidence does not disclose that the cochero was negligent.

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

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

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

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

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

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

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

137
In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it was error on the part of the trial court
to refuse to charge that "it is not negligence for the driver of a quite, gentle horse to leave him
unhitched and otherwise unattended on the side of a public highways while the driver is upon the
sidewalk loading goods on the wagon." The said court closed its opinion with these words:

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

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

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

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

The act of defendant's driver in leaving the horses in the manner proved was not unreasonable or
imprudent. Acts the performance of which has not proved destructive or injurious and which have,
therefore, been acquiesced in by society for so long a time that they have ripened into custom, can not
be held to be themselves unreasonable or imprudent. Indeed the very reason why they have been
permitted by society is that they beneficial rather than prejudicial. Accidents sometimes happen and
injuries result from the most ordinary acts of life. But such are not their natural or customary results. To
hold that, because such an act once resulted in accident or injury, the actor is necessarily negligent, is to
go far. The fact that the doctrine of res ipsa loquitur is sometimes successfully invoked in such a case,
does not in any sense militate against the reasoning presented. That maxim at most only creates a prima
facie case, and that only in the absence of proof of the circumstances under which the act complained of
was performed. It is something invoked in favor of the plaintiff before defendant's case showing the
conditions and circumstances under which the injury occurred, the creative reason for the doctrine of
res ipsa loquitur disappears. This is demonstrated by the case of Inland and Seaboard Costing Co. vs.
Tolson (139 U.S., 551), where the court said (p. 554):

". . . The whole effect of the instruction in question, as applied to the case before the jury, was that if
the steamboat, on a calm day and in smooth water, was thrown with such force against a wharf properly
built, as to tear up some of the planks of the flooring, this would be prima facie evidence of negligence

138
on the part of the defendant's agent in making the landing, unless upon the whole evidence in the case
this prima facie evidence was rebutted. As such damage to a wharf is not ordinarily done by a steamboat
under control of her officers and carefully managed by them, evidence that such damage was done in
this case was prima facie, and, if unexplained, sufficient evidence of negligence on their part, and the
jury might properly be so instructed."

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

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

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

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

Separate Opinions

TORRES, J., dissenting:

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

139
Yao Kee vs. Sy-Gonzales, G.R. No. 55960, November 24, 1988

[G.R. No. 55960. November 24, 1988.]

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

Montesa, Albon & Associates for petitioner.

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

SYLLABUS

1. CIVIL LAW; CUSTOM, DEFINED. — Custom is defined as "a rule of conduct formed by repetition
of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory" [In the Matter of
the Petition for Authority to Continue Use of the Firm Name "Ozaeta, Romulo, de Leon, Mabanta and
Reyes", July 30, 1979, 92 SCRA 3, 12].

2. ID.; ID.; MUST BE PROVED ACCORDING TO THE RULES ON EVIDENCE. — The law requires that "a
custom must be proved as a fact, according to the rules of evidence" [Article 12, Civil Code.] On this
score the Court had occasion to state that "a local custom as a source of right can not be considered by
a court of justice unless such custom is properly established by competent evidence like any other fact"
[Patriarca v. Orate, 7 Phil. 390, 395 (1907).] The same evidence, if not one of a higher degree, should be
required of a foreign custom.

3. ID.; FOREIGN MARRIAGE; HOW PROVED. — To establish a valid foreign marriage two things
must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the alleged
foreign marriage by convincing evidence [Adong v. Cheong Seng Gee, 43 Phil. 43, 49 (1922)].

4. REMEDIAL LAW; EVIDENCE; PROOF OF WRITTEN FOREIGN LAW; TESTIMONY OF COMPETENT

WITNESS, INCLUDED. — In proving a foreign law the procedure is provided in the Rules of Court. Proof
of a written foreign law, on the other hand, is provided for under Rule 132 Section 25. The Court has
interpreted section 25 to include competent evidence like the testimony of a witness to prove the
existence of a written foreign law [Collector of Internal Revenue v. Fisher 110 Phil. 686, 700-701 (1961)
citing Willamette Iron and Steel Works v. Muzzal, 61 Phil. 471 (1935).]

5. ID.; ID.; ID.; MARRIAGE CONTRACTED PURSUANT TO A FOREIGN LAW MUST BE PROVED TO BE
RECOGNIZED; CASE AT BAR. — Accordingly, in the absence of proof of the Chinese law on marriage, it
should be presumed that it is the same as ours . . . [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March 31,
1965, 13 SCRA 552, 555.] Since Yao Kee admitted in her testimony that there was no solemnizing officer
as is known here in the Philippines [See Article 56, Civil Code] when her alleged marriage to Sy Kiat was
celebrated it therefore follows that her marriage to Sy Kiat, even if true, cannot be recognized in this
jurisdiction [Wong Woo Yiu v. Vivo, supra., pp. 555-556.]

140
6. ID.; PHILIPPINE COURTS CANNOT TAKE JUDICIAL NOTICE OF FOREIGN LAWS. — Philippine courts
cannot take judicial notice of foreign laws. They must be alleged and proved as any other fact [Yam Ka
Lim v. Collector of Customs, 30 Phil. 46, 48 (1915); Fluemer v. Hix, 54 Phil. 610 (1930).]

7. ID.; EVIDENCE; PROOF OF WRITTEN FOREIGN LAW; RULING IN MEMORACION CASE, NOT
APPLICABLE TO CASE AT BAR. — The Memoracion case however is not applicable to the case at bar as
said case did not concern a foreign marriage and the issue posed was whether or not the oral testimony
of a spouse is competent evidence to prove the fact of marriage in a complaint for adultery.

8. CIVIL LAW; PERSONS; PATERNITY AND FILIATION; FAILURE TO ESTABLISH CELEBRATION OF

MARRIAGE ACCORDING TO THE LAWS OF CHINA; EFFECT ON STATUS OF CHILDREN. — Failure to
establish the marriage of Yao Kee with Sy Kiat according to the laws of China, they cannot be accorded
the status of legitimate children but only that of acknowledged natural children. Petitioners are natural
children, it appearing that at the time of their conception Yao Kee and Sy Kiat were not disqualified by
any impediment to marry one another [See Art. 269, Civil Code.] And they are acknowledged children of
the deceased because of Sy Kiat's recognition of Sze Sook Wah.

9. ID.; ID.; ID.; RECOGNITION OF NATURAL CHILDREN; ACKNOWLEDGMENT OF ONE NATURAL

CHILD BENEFITS HER SISTERS AND BROTHERS OF THE FULL BLOOD. — The acknowledgment of Sze Sook
Wah extends to Sze Lai Cho and Sy Chun Yen who are her sisters of the full blood [See Art. 271, Civil
Code].

10. ID.; ID.; ID.; COMPROMISE AGREEMENT ACKNOWLEDGING THEIR NATURAL CHILDREN AND
PROVIDING FOR THEIR SUPPORT CONSTITUTES A STATEMENT BEFORE A COURT OF RECORD. —
Compromise agreement entered into by their parents acknowledging their five (5) natural children and
providing for their support approved by the Court of First Instance constitutes a statement before a
court of record by which a child may be voluntarily acknowledged [See Art. 278, Civil Code].

11. REMEDIAL LAW; BATAS PAMBANSA BLG. 129; FUNCTIONS AND JURISDICTION OF THE JUVENILE
AND DOMESTIC RELATIONS COURTS, VESTED NOW WITH THE REGIONAL TRIAL COURT. — With the
enactment of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of 1980,
the Juvenile and Domestic Relations Courts were abolished. Their functions and jurisdiction are now
vested with the Regional Trial Courts [See Section 19 (7), B.P. Blg. 129 and Divinagracia v. Bellosillo, G.R.
No. L-47407, August 12, 1986, 143 SCRA 356, 360]

12. ID.; ACTIONS; ISSUE ON PATERNITY AND FILIATION MAY BE PASSED UPON IN A TESTATE OR
INTESTATE PROCEEDING; REASON. — A case involving paternity and acknowledgment may be ventilated
as an incident in the intestate or testate proceeding (See Baluyot vs. Ines Luciano, L-42215, July 13,
1976). But that legal provision presupposes that such an administration proceeding is pending or
existing and has not been terminated. The reason for this rule is not only "to obviate the rendition of
conflicting rulings on the same issue by the Court of First Instance and the Juvenile and Domestic
Relations Court" [Vda. de Baluyut v. Luciano, G.R. No. L-42215, July 13, 1976, 72 SCRA 52, 63] but more
importantly to prevent multiplicity of suits.

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DECISION

CORTES, J p:

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

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

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

After hearing, the probate court, finding among others that:

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

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

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

held in favor of the oppositors (petitioners herein) and appointed Sze Sook Wah as the administratrix of
the intestate estate of the deceased [CFI decision, pp. 68-69; Rollo, pp. 106.]

On appeal the Court of Appeals rendered a decision modifying that of the probate court, the dispositive
portion of which reads:

IN VIEW OF THE FOREGOING, the decision of the lower Court is hereby MODIFIED and SET ASIDE and a
new judgment rendered as follows:

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

(2) Declaring oppositors Sze Sook Wah, Sze Lai Chu and Sze Chun Yen, the acknowledged natural
children of the deceased Sy Kiat with his Chinese wife Yao Kee, also known as Yui Yip, since the legality

142
of the alleged marriage of Sy Kiat to Yao Kee in China had not been proven to be valid to the laws of the
Chinese People's Republic of China (sic);

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

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

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

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

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

Herein petitioners assign the following as errors:

I. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DECLARING THE MARRIAGE OF SY KIAT

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

II. RESPONDENT COURT OF APPEALS GRAVELY ERRED IN DECLARING AIDA SY-GONZALES, MANUEL
SY, TERESITA SY-BERNABE AND RODOLFO SY AS NATURAL CHILDREN OF SY KIAT WITH ASUNCION
GILLEGO. [Petition, p. 2; Rollo, p. 6.]

I. Petitioners argue that the marriage of Sy Kiat to Yao Kee in accordance with Chinese law and
custom was conclusively proven. To buttress this argument they rely on the following testimonial and
documentary evidence.

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

Yao Kee testified that she was married to Sy Kiat on January 19, 1931 in Fookien, China; that she does
not have a marriage certificate because the practice during that time was for elders to agree upon the
betrothal of their children, and in her case, her elder brother was the one who contracted or entered
into [an] agreement with the parents of her husband; that the agreement was that she and Sy Kiat
would be married, the wedding date was set, and invitations were sent out; that the said agreement

143
was complied with; that she has five children with Sy Kiat, but two of them died; that those who are
alive are Sze Sook Wah, Sze Lai Cho, and Sze Chun Yen, the eldest being Sze Sook Wah who is already 38
years old; that Sze Sook Wah was born on November 7, 1939; that she and her husband, Sy Kiat, have
been living in Fookien, China before he went to the Philippines on several occasions; that the practice
during the time of her marriage was a written document [is exchanged] just between the parents of the
bride and the parents of the groom, or any elder for that matter; that in China, the custom is that there
is a go-between, a sort of marriage broker who is known to both parties who would talk to the parents
of the bride-to-be; that if the parents of the bride-to-be agree to have the groom-to-be their son-in-law,
then they agree on a date as an engagement day; that on engagement day, the parents of the groom
would bring some pieces of jewelry to the parents of the bride-to-be, and then one month after that, a
date would be set for the wedding, which in her case, the wedding date to Sy Kiat was set on January 19,
1931; that during the wedding the bridegroom brings with him a couch (sic) where the bride would ride
and on that same day, the parents of the bride would give the dowry for her daughter and then the
document would be signed by the parties but there is no solemnizing officer as is known in the
Philippines; that during the wedding day, the document is signed only by the parents of the bridegroom
as well as by the parents of the bride; that the parties themselves do not sign the document; that the
bride would then be placed in a carriage where she would be brought to the town of the bridegroom
and before departure the bride would be covered with a sort of a veil; that upon reaching the town of
the bridegroom, the bridegroom takes away the veil; that during her wedding to Sy Kiat (according to
said Chinese custom), there were many persons present; that after Sy Kiat opened the door of the
carriage, two old ladies helped her go down the carriage and brought her inside the house of Sy Kiat;
that during her wedding, Sy Chiok, the eldest brother of Sy Kiat, signed the document with her mother;
that as to the whereabouts of that document, she and Sy Kiat were married for 46 years already and the
document was left in China and she doubt if that document can still be found now; that it was left in the
possession of Sy Kiat's family; that right now, she does not know the whereabouts of that document
because of the lapse of many years and because they left it in a certain place and it was already eaten by
the termites; that after her wedding with Sy Kiat, they lived immediately together as husband and wife,
and from then on, they lived together; that Sy Kiat went to the Philippines sometime in March or April in
the same year they were married; that she went to the Philippines in 1970, and then came back to
China; that again she went back to the Philippines and lived with Sy Kiat as husband and wife; that she
begot her children with Sy Kiat during the several trips by Sy Kiat made back to China. [CFI decision, pp.
13-15; Rollo, pp. 50-52.]

Second, the testimony of Gan Ching, a younger brother of Yao Kee who stated that he was among the
many people who attended the wedding of his sister with Sy Kiat and that no marriage certificate is
issued by the Chinese government, a document signed by the parents or elders of the parties being
sufficient [CFI decision, pp. 15-16; Rollo, pp. 52-53.]

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

144
Fourth, Sy Kiat's Master Card of Registered Alien issued in Caloocan City on October 3, 1972 where the
following entries are found: "Marital status — Married"; "If married give name of spouse — Yao Kee";
"Address — China"; "Date of marriage — 1931"; and "Place of marriage — China" [Exhibit "SS-1".]

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

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

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

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

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

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

Construing this provision of law the Court has held that to establish a valid foreign marriage two things
must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the alleged
foreign marriage by convincing evidence [Adong v. Cheong Seng Gee, 43 Phil. 43, 49 (1922).]

In proving a foreign law the procedure is provided in the Rules of Court. With respect to an unwritten
foreign law, Rule 130 section 45 states that:

SEC. 45. Unwritten law. — The oral testimony of witnesses, skilled therein, is admissible as evidence of
the unwritten law of a foreign country, as are also printed and published books of reports of decisions of
the courts of the foreign country, if proved to be commonly admitted in such courts.

145
Proof of a written foreign law, on the other hand, is provided for under Rule 132 section 25, thus:

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

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

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

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

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

Moreover a reading of said case would show that the party alleging the foreign marriage presented a
witness, one Li Ung Bieng, to prove that matrimonial letters mutually exchanged by the contracting
parties constitute the essential requisite for a marriage to be considered duly solemnized in China.
Based on his testimony, which as found by the Court is uniformly corroborated by authors on the
subject of Chinese marriage, what was left to be decided was the issue of whether or not the fact of
marriage in accordance with Chinese law was duly proven [Sy Joc Lieng v. Sy Quia, supra., at p. 160.]

Further, even assuming for the sake of argument that the Court has indeed taken judicial notice of the
law of China on marriage in the aforecited case, petitioners however have not shown any proof that the
Chinese law or custom obtaining at the time the Sy Joc Lieng marriage was celebrated in 1847 was still
the law when the alleged marriage of Sy Kiat to Yao Kee took place in 1931 or eighty-four (84) years
later.

Petitioners moreover cite the case of U.S. v. Memoracion [34 Phil. 633 (1916)] as being applicable to the
instant case. They aver that the judicial pronouncement in the Memoracion case, that the testimony of

146
one of the contracting parties is competent evidence to show the fact of marriage, holds true in this
case.

The Memoracion case however is not applicable to the case at bar as said case did not concern a foreign
marriage and the issue posed was whether or not the oral testimony of a spouse is competent evidence
to prove the fact of marriage in a complaint for adultery.

Accordingly, in the absence of proof of the Chinese law on marriage, it should be presumed that it is the
same as ours *** [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March 31, 1965, 13 SCRA 552, 555.] Since
Yao Kee admitted in her testimony that there was no solemnizing officer as is known here in the
Philippines [See Article 56, Civil Code] when her alleged marriage to Sy Kiat was celebrated [CFI decision,
p. 14; Rollo, p. 51], it therefore follows that her marriage to Sy Kiat, even if true, cannot be recognized in
this jurisdiction [Wong Woo Yiu v. Vivo, supra., pp. 555-556.]

II. The second issue raised by petitioners concerns the status of private respondents.

Respondent court found the following evidence of petitioners' filiation:

(1) Sy Kiat's Master Card of Registered Alien where the following are entered: "Children if any: give
number of children — Four"; and, "Name — All living in China" [Exhibit "SS-1";]

(2) the testimony of their mother Yao Kee who stated that she had five children with Sy Kiat, only
three of whom are alive namely, Sze Sook Wah Sze Lai Chu and Sze Chin Yan [TSN, December 12, 1977,
pp. 9-11;] and,

(3) an affidavit executed on March 22, 1961 by Sy Kiat for presentation to the Local Civil Registrar of
Manila to support Sze Sook Wah's application for a marriage license, wherein Sy Kiat expressly stated
that she is his daughter [Exhibit "3".]

Likewise on the record is the testimony of Asuncion Gillego that Sy Kiat told her he has three daughters
with his Chinese wife, two of whom — Sook Wah and Sze Kai Cho — she knows, and one adopted son
[TSN, December 6, 1977, pp. 87-88.]

However, as petitioners failed to establish the marriage of Yao Kee with Sy Kiat according to the laws of
China, they cannot be accorded the status of legitimate children but only that of acknowledged natural
children. Petitioners are natural children, it appearing that at the time of their conception Yao Kee and
Sy Kiat were not disqualified by any impediment to marry one another [See Art. 269, Civil Code.] And
they are acknowledged children of the deceased because of Sy Kiat's recognition of Sze Sook Wah
[Exhibit "3"] and its extension to Sze Lai Cho and Sy Chun Yen who are her sisters of the full blood [See
Art. 271, Civil Code.]

Private respondents on the other hand are also the deceased's acknowledged natural children with
Asuncion Gillego, a Filipina with whom he lived for twenty-five (25) years without the benefit of
marriage. They have in their favor their father's acknowledgment, evidenced by a compromise
agreement entered into by and between their parents and approved by the Court of First Instance on

147
February 12, 1974 wherein Sy Kiat not only acknowledged them as his children by Asuncion Gillego but
likewise made provisions for their support and future inheritance, thus:

xxx xxx xxx

2. The parties also acknowledge that they are common-law husband and wife and that out of such
relationship, which they have likewise decided to definitely and finally terminate effective immediately,
they begot five children, namely: Aida Sy, born on May 30, 1950; Manuel Sy, born on July 1, 1953;
Teresita Sy, born on January 28, 1955; Ricardo Sy now deceased, born on December 14, 1956; and
Rodolfo Sy, born on May 7, 1958.

3. With respect to the AVENUE TRACTOR AND DIESEL PARTS SUPPLY . . ., the parties mutually
agree and covenant that —

(a) The stocks and merchandise and the furniture and equipments . . ., shall be divided into two
equal shares between, and distributed to, Sy Kiat who shall own one-half of the total and the other half
to Asuncion Gillego who shall transfer the same to their children, namely, Aida Sy, Manuel Sy, Teresita
Sy, and Rodolfo Sy.

(b) the business name and premises . . . shall be retained by Sy Kiat. However, it shall be his
obligation to give to the aforenamed children an amount of One Thousand Pesos (P1,000;00) monthly
out of the rental of the two doors of the same building now occupied by Everett Construction.

xxx xxx xxx

(5) With respect to the acquisition, during the existence of the common-law husband-and-wife
relationship between the parties, of the real estates and properties registered and/or appearing in the
name of Asuncion Gillego . . ., the parties mutually agree and covenant that the said real estates and
properties shall be transferred in equal shares to their children, namely, Aida Sy, Manuel Sy, Teresita Sy,
and Rodolfo Sy, but to be administered by Asuncion Gillego during her lifetime. . . . [Exhibit "D".]
(Emphasis supplied.)

xxx xxx xxx

This compromise agreement constitutes a statement before a court of record by which a child may be
voluntarily acknowledged [See Art. 278, Civil Code.]

Petitioners further argue that the questions on the validity of Sy Kiat's marriage to Yao Kee and the
paternity and filiation of the parties should have been ventilated in the Juvenile and Domestic Relations
Court.

Specifically, petitioners rely on the following provision of Republic Act No. 5502, entitled "An Act
Revising Rep. Act No. 3278, otherwise known as the Charter of the City of Caloocan"; with regard to the
Juvenile and Domestic Relations Court:

SEC. 91-A. Creation and Jurisdiction of the Court. —

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xxx xxx xxx

The provisions of the Judiciary Act to the contrary notwithstanding, the court shall have exclusive
original jurisdiction to hear and decide the following cases;

xxx xxx xxx

(2) Cases involving custody, guardianship, adoption, revocation of adoption, paternity and
acknowledgment;

(3) Annulment of marriages, relief from marital obligations legal separation of spouses, and actions
for support;

(4) Proceedings brought under the provisions of title six and title seven, chapters one to three of
the civil code;

xxx xxx xxx

and the ruling in the case of Bartolome v. Bartolome [G.R. No. L-23661, 21 SCRA 1324] reiterated in
Divinagracia v. Rovira [G.R. No. L-42615, 72 SCRA 307.]

With the enactment of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of
1980, the Juvenile and Domestic Relations Courts were abolished. Their functions and jurisdiction are
now vested with the Regional Trial Courts [See Section 19 (7), B.P. Blg. 129 and Divinagracia v. Bellosillo,
G.R. No. L-47407, August 12, 1986, 143 SCRA 356, 360] hence it is no longer necessary to pass upon the
issue of jurisdiction raised by petitioners.

Moreover, even without the enactment of Batas Pambansa Blg. 129 we find in Rep. Act No. 5502 sec.
91-A last paragraph that:

xxx xxx xxx

If any