G.R. No. L-5162 January 31, 1952 ELISEO SILVA, petitioner,
vs. THE HONORABLE FELICIANO OCAMPO, GABRIEL P. PRIETO and QUINTIN PAREDES, JR., in their capacities as Commissioners of the Public Service Commission and BELEN CABRERA, respondents r espondents.. Rivera, Castano, Medina and Ampil for petitioner. A.R. Aspillera for respondents Hons. Hons. Feliciano Ocampo, Gabriel P. Prieto and Quintin Paredes, Jr. Evaristo R. Sandoval for respondent Belen Cabrera. BAUTISTA ANGELO, J. ANGELO, J.:: This is a petition for certiorari wherein it is prayed that, pending hearing, a writ of preliminary injunction be issued to restrain the
respondent Belen Cabrera from operating her ice plant and that, after hearing, the order granting said respondent a provision al permit to operate her ice plant be declared null and void. Belen Cabrera filed in the Public Service Commission an application for a certificate of public convenience to install, maintain and operate in the City of Lipa an ice plant with a 10-ton daily productive capacity and to sell the produce of said plant in said city as well as in several municipalities of the province of Batangas. Eliseo Silva opposed the application on the ground that his ice plant was adequate to meet the needs of the public and that public convenience did not require the operation of another ice plant. Commissioner Feliciano Ocampo commissioned Attorney Antonio Antonio H. Aspillera, chief of the legal division, to receive the evidence. Based on the evidence received by Aspillera, the Commission granted the application. On appeal, however, the Supreme Court held that the proceedings had before Attorney Aspillera were null and void being in violation of section 3 of the Public Service Act, as amended, and set aside the decision of the Commission and ordered that the case returned for rehearing. At the re-hearing before Commissioner Ocampo, counsel for the application offered to re-submit all the evidence presented by her at the hearing before Attorney Aspillera. Counsel for oppositor objected to the re -submission contending that said evidence can only be re-submitted if both parties agree to do so. Commissioner Ocampo ruled that the evidence could be re-submitted subject only to a revision by the Commissioner of the rulings made by Attorney Aspillera, and Commissioner Ocampo in fact revised said rulings and found them to be correct. In the opinion of Commissioner Ocampo, the the applicant has the right either to re-submit her former evidence or to present evidence de novo and that it is not intended by the decision of this Court to curtail her right to choose between these two alternatives. On the basis of this evidence, Commissioner Ocampo granted to the applicant a provisional permit subject to the condition that it may be cancelled or revoked at any time and without prejudice to whatever final decision may be rendered in the case. The motion for reconsideration of oppositor having been denied, he filed this petition for certiorari. The dispositive part of the decision invoked by petitioner in opposing the re-submission by the applicant of her evidence says in part as follows: Setting aside the decision appealed from, let this case be returned to the Public Service Commission so that evidence may be submitted by the parties in a hearing or hearings before the Commission in banc or before any of the Commissioners if properly authorized, unless of course, said parties agree at said hearing or hearings to re-submit the evidence already presented and taken down, with such modifications and under such conditions as they may agree upon, including such other evidence which they wish to present. (G.R. No. L-3629). Petitioner contends that Commissioner Ocampo acted in a manner contrary to the ruling of the Supreme Court when he allowed the re-submission of the evidence of the applicant, instead of requiring her to present her evidence de novo, over the objection of the petitioner. For this reason, petitioner contends, the decision of Commissioner Ocampo should be set aside and rendered without effect. The interpretation placed on the above ruling of this Court by Commissioner Ocampo is indeed erroneous, as it fails to grasp its real import and significance. The rationale of the rule is none other than to make the Commission, or any of the Commissioners who may be authorized for this purpose, to try the case or, receive the evidence itself, as the law requires, so that it may have the necessary opportunity for observation and appreciation of the evidence to enable it to reach an accurate and intelligent conclusion. Mere re-submission of the evidence already presented would not meet this compelling objective, the only exception being when the opposing parties agree to such re-submission. This is a privilege that can exercise or waive in the use of their discretion. Inasmuch as Commissioner Ocampo has not observed the directive contained in the decision adverted to and it appearing that this decision has been concurred in by the other two Commissioners, we are of the opinion that the respondent Commission has committed an abuse of discretion in overruling the petitioner to the re-submission of the evidence presented by the applicant before Attorney Aspillera. We notice, however, that the incident relative to the resubmission of the evidence of the application took place in connection only with the hearing set by the Commission for the purpose of determining if said applicant could be given a provisional or authority to continue operating her 10-ton ice plant in Lipa City pending hearing and final determination of the case. The hearing was set at the express instance of the applicant in view of the attitude of the oppositor in asking for an indefinite postponement of the hearing on the merits. The Commission found that the applicant had made considerable investment to acquire and install her 10-ton ice plant in the city of Lipa and that there was an urgent need for ice not only by the people of that city but also of the towns of Cuenca, Alitagtag and Ibaan, which condition had existed and continued to exist since the original decision in this case had been rendered, for which reasons the Commission found sufficient warrant the issuance of a provisional permit. In so granting such provisional permit, the Commission Commission partly said: "If the best interests and convenience of the public are to be subserved, applicant should be granted a provisional permit, to continue operating her plant while this case is being litigated. To order the closing down of applicant's plant in the face of the evidence showing that the public needs her service would be a disservice to the public. This provisional authority should be granted granted because the public's need for the service is urgent and the hearing and final determination of this case will necessarily take time." We are of the opinion that while the evidence presented by t he applicant has been admitted in violation of the directive of this Court, however, such evidence may serve as justification, if the Commission so finds it, to warrant the issuance of a provisional permit. There is nothing in the law which prohibits the Commission from receiving any pertinent evidence for the purpose of acting on a petition for the provisional permit. The law is silent as to the procedure to be followed with regard to provisional permit. The law even empowers the Commission to act, without hearing, on certain matters of public interest, "subject to established limitations and exceptions and saving provisions, to the contrary" (section 17, Com. Act 146, as amended). There being no express prohibition in the law, nor any provision to the contrary, we hold that the re-submitted evidence may serve as basis for the issuance of a provisional permit to the applicant. A case in point Peck vs. Public Utilities Commission, 170 N.E. 364. In I n this case, c ase, certificates 82 and 83, for interstate bus transportation between Toledo and Sylvania, Ohio, were owned by the Black Hawk Lines, Inc., and such company was conducting operations thereunder. Upon the application of certain creditors, a receiver was appointed. Later, Michigan-Ohio Bus Lines, Inc., filed an application for an extension of its certificate No 84 to cover the same route theretofore operated on under certificates 82 and 83 by the Black Hawk Lines, Inc. The Commission, without notice to the receiver or to the Black Hawks Lines, Inc., issued an order granting temporarily an extension of certificate No. 847 to operate over what had theretofore been
routes 82 and 83. On appeal, the grant of this temporary permit was assigned as error. The Supreme Court of Ohio justified the action of the Commission saying on this point as follows: Believing in good faith that the public living along the line of this route was without transportation service, that the transportation company then holding the certificate serving such territory did not provide the service required or the particular kind of equipment necessary to furnish such service, and that the public was practically without transportation, we cannot find that such temporary order, issued as an emergency measure, violated the letter or spirit of section 614-87, General Code. (Peck vs. Public Utilities Commission, 170 N.E. 366). As regards the contention of petitioner that Public Service Commission has no power to grant temporary or provisional permit under the law, it suffices for us to state that the Commission has such power when the purpose of the permit is to meet an urgent public necessity (Javellana vs. La Paz Ice Plant and Cold Storage Co., 64 Phil., 893; Ablaza Transportation Co., Inc., vs. Pampanga Bus Inc., 88 Phil., 412). Wherefore, the petition is denied with costs against the petitioner. It is ordered that the Public Service Commission immediately set the hearings of this case for trial de novo in line with the ruling of this Court in G.R. No. L-3629. * Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Montemayor, Reyes and Jugo, JJ., concur. August 30, 1967 G.R. No. L-22301 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. MARIO MAPA Y MAPULONG, defendant-appellant. defendant-appellant. Francisco P. Cabigao for defendant-appellant. defendant-appellant. Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General F. R. Rosete and Solicitor O. C. Hernandez for plaintiffappellee. FERNANDO, J.: FERNANDO, J.:
The sole question in this appeal from a judgment of conviction by the lower court is whether or not the appointment to and holding of the position of a secret agent to the provincial governor would constitute a sufficient defense to a prosecution for the crime of illegal possession of firearm and ammunition. We hold that it does not. The accused in this case was indicted for the above offense in an information dated August 14, 1962 reading as follows: "The undersized accuses MARIO MAPA Y MAPULONG of a violation of Section 878 in connection with Section 2692 of the Revised Administrative Code, as amended by Commonwealth by Commonwealth Act No. 56 and as further amended by Republic by Republic Act No. 4, committed 4, committed as follows: That on or about the 13th day of August, 1962, in the City of Manila, Philippines, the said accused did then and there wilfully and unlawfully have in his possession and under his custody and control one home-made revolver (Paltik), Cal. 22, without serial number, with six (6) rounds of ammunition, without first having secured the necessary license or permit therefor from the corresponding authorities. Contrary to law." When the case was called for hearing on September 3, 1963, the lower court at the outset asked the counsel for the accused: "May counsel stipulate that the accused was found in possession of the gun involved in this case, that he has neither a permit or license to possess the same and that we can submit the same on a question of law whether or not an agent of the governor can hold a firearm without a permit issued i ssued by the Philippine Phili ppine Constabulary." After counsel sought from the fiscal an assurance that he would not question the authenticity of his exhibits, the understanding being that only a question of law would be submitted for decision, he explicitly specified such question to be "whether or not a secret agent is not required to get a license for his firearm." Upon the lower court stating that the fiscal should examine the document so that he could pass on their authenticity, the fiscal asked the following question: "Does the accused admit that this pistol cal. 22 revolver with six si x rounds of ammunition mentioned in the information was found in his possession on August 13, 1962, in the City of Manila without first having secured the necessary license or permit thereof from the corresponding authority?" The accused, now the appellant, answered categorically: "Yes, Your Honor." Upon which, the lower court made a statement: "The accused admits, Yes, and his counsel Atty. Cabigao also affirms that the accused admits." Forthwith, the fiscal announced that he was "willing to submit the same for decision." Counsel for the accused on his part presented four (4) exhibits consisting of his appointment "as secret agent of the Hon. Feliciano Leviste," then Governor of Batangas, dated June 2, 1962; [[1]] another document likewise issued by Gov. Leviste also addressed to the accused directing him to proceed to Manila, Pasay and Quezon City on a confidential mission; [[2]] the oath of office of the accused as such secret agent, [[3]] a certificate dated March 11, 1963, to the effect that the accused "is a secret agent" of Gov. Leviste. [[4]] Counsel for the accused then stated that with the presentation of the above exhibits he was "willing to submit the case on the question of whether or not a secret agent duly appointed and qualified as such of the provincial governor is exempt from the requirement of having a license of firearm." The exhibits were admitted and the parties were given time to file their respective memoranda. Thereafter on November 27, 1963, the lower court rendered a decision convicting the accused "of the crime of illegal possessi on of firearms and sentenced to an indeterminate penalty of from one year and one day to two years and to pay the costs. The firearm and ammunition confiscated from him are forfeited in favor of the Government." The only question being one of law, the appeal was taken to this Court. The decision must be affirmed. The law is explicit that except as thereafter specifically allowed, "it shall be unlawful for any person to . . . possess any firearm, detached parts of firearms or ammunition therefor, or any instrument or implement used or intended to be used in the manufacture of firearms, parts of firearms, or ammunition." [[5]] The next section provides that "firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines [of the Armed Forces of the Philippines], the Philippine Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial guards treasurers, municipal treasurers, municipal mayors, and guards of provincial prisoners and jails," are not covered "when such firearms are in possession of such officials and public servants for use in the performance of their official duties." [[6]] The law cannot be any clearer. No provision is made for a secret agent. As such he is not exempt. Our task is equally clear. The first and fundamental duty of courts is to apply the law. "Construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them." [[7]] The conviction of the accused must stand. It cannot be set aside. Macarandang,[[8]] where a secret agent was acquitted on appeal on the assumption Accused however would rely on People v. Macarandang that the appointment "of the accused as a secret agent to assist in the maintenance of peace and order campaigns and detection of crimes, sufficiently put him within the category of a "peace officer" equivalent even to a member of the municipal police expressly covered by section 879." Such reliance is misplaced. It is not within the power of this Court to set aside the clear and explicit mandate of a statutory provision. To the extent therefore that this decision conflicts with what was held in People v. Macarandang Macarandang , it no longer speaks with authority. Wherefore, the judgment appealed from is affirmed. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ.,
routes 82 and 83. On appeal, the grant of this temporary permit was assigned as error. The Supreme Court of Ohio justified the action of the Commission saying on this point as follows: Believing in good faith that the public living along the line of this route was without transportation service, that the transportation company then holding the certificate serving such territory did not provide the service required or the particular kind of equipment necessary to furnish such service, and that the public was practically without transportation, we cannot find that such temporary order, issued as an emergency measure, violated the letter or spirit of section 614-87, General Code. (Peck vs. Public Utilities Commission, 170 N.E. 366). As regards the contention of petitioner that Public Service Commission has no power to grant temporary or provisional permit under the law, it suffices for us to state that the Commission has such power when the purpose of the permit is to meet an urgent public necessity (Javellana vs. La Paz Ice Plant and Cold Storage Co., 64 Phil., 893; Ablaza Transportation Co., Inc., vs. Pampanga Bus Inc., 88 Phil., 412). Wherefore, the petition is denied with costs against the petitioner. It is ordered that the Public Service Commission immediately set the hearings of this case for trial de novo in line with the ruling of this Court in G.R. No. L-3629. * Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Montemayor, Reyes and Jugo, JJ., concur. August 30, 1967 G.R. No. L-22301 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. MARIO MAPA Y MAPULONG, defendant-appellant. defendant-appellant. Francisco P. Cabigao for defendant-appellant. defendant-appellant. Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General F. R. Rosete and Solicitor O. C. Hernandez for plaintiffappellee. FERNANDO, J.: FERNANDO, J.:
The sole question in this appeal from a judgment of conviction by the lower court is whether or not the appointment to and holding of the position of a secret agent to the provincial governor would constitute a sufficient defense to a prosecution for the crime of illegal possession of firearm and ammunition. We hold that it does not. The accused in this case was indicted for the above offense in an information dated August 14, 1962 reading as follows: "The undersized accuses MARIO MAPA Y MAPULONG of a violation of Section 878 in connection with Section 2692 of the Revised Administrative Code, as amended by Commonwealth by Commonwealth Act No. 56 and as further amended by Republic by Republic Act No. 4, committed 4, committed as follows: That on or about the 13th day of August, 1962, in the City of Manila, Philippines, the said accused did then and there wilfully and unlawfully have in his possession and under his custody and control one home-made revolver (Paltik), Cal. 22, without serial number, with six (6) rounds of ammunition, without first having secured the necessary license or permit therefor from the corresponding authorities. Contrary to law." When the case was called for hearing on September 3, 1963, the lower court at the outset asked the counsel for the accused: "May counsel stipulate that the accused was found in possession of the gun involved in this case, that he has neither a permit or license to possess the same and that we can submit the same on a question of law whether or not an agent of the governor can hold a firearm without a permit issued i ssued by the Philippine Phili ppine Constabulary." After counsel sought from the fiscal an assurance that he would not question the authenticity of his exhibits, the understanding being that only a question of law would be submitted for decision, he explicitly specified such question to be "whether or not a secret agent is not required to get a license for his firearm." Upon the lower court stating that the fiscal should examine the document so that he could pass on their authenticity, the fiscal asked the following question: "Does the accused admit that this pistol cal. 22 revolver with six si x rounds of ammunition mentioned in the information was found in his possession on August 13, 1962, in the City of Manila without first having secured the necessary license or permit thereof from the corresponding authority?" The accused, now the appellant, answered categorically: "Yes, Your Honor." Upon which, the lower court made a statement: "The accused admits, Yes, and his counsel Atty. Cabigao also affirms that the accused admits." Forthwith, the fiscal announced that he was "willing to submit the same for decision." Counsel for the accused on his part presented four (4) exhibits consisting of his appointment "as secret agent of the Hon. Feliciano Leviste," then Governor of Batangas, dated June 2, 1962; [[1]] another document likewise issued by Gov. Leviste also addressed to the accused directing him to proceed to Manila, Pasay and Quezon City on a confidential mission; [[2]] the oath of office of the accused as such secret agent, [[3]] a certificate dated March 11, 1963, to the effect that the accused "is a secret agent" of Gov. Leviste. [[4]] Counsel for the accused then stated that with the presentation of the above exhibits he was "willing to submit the case on the question of whether or not a secret agent duly appointed and qualified as such of the provincial governor is exempt from the requirement of having a license of firearm." The exhibits were admitted and the parties were given time to file their respective memoranda. Thereafter on November 27, 1963, the lower court rendered a decision convicting the accused "of the crime of illegal possessi on of firearms and sentenced to an indeterminate penalty of from one year and one day to two years and to pay the costs. The firearm and ammunition confiscated from him are forfeited in favor of the Government." The only question being one of law, the appeal was taken to this Court. The decision must be affirmed. The law is explicit that except as thereafter specifically allowed, "it shall be unlawful for any person to . . . possess any firearm, detached parts of firearms or ammunition therefor, or any instrument or implement used or intended to be used in the manufacture of firearms, parts of firearms, or ammunition." [[5]] The next section provides that "firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines [of the Armed Forces of the Philippines], the Philippine Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial guards treasurers, municipal treasurers, municipal mayors, and guards of provincial prisoners and jails," are not covered "when such firearms are in possession of such officials and public servants for use in the performance of their official duties." [[6]] The law cannot be any clearer. No provision is made for a secret agent. As such he is not exempt. Our task is equally clear. The first and fundamental duty of courts is to apply the law. "Construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them." [[7]] The conviction of the accused must stand. It cannot be set aside. Macarandang,[[8]] where a secret agent was acquitted on appeal on the assumption Accused however would rely on People v. Macarandang that the appointment "of the accused as a secret agent to assist in the maintenance of peace and order campaigns and detection of crimes, sufficiently put him within the category of a "peace officer" equivalent even to a member of the municipal police expressly covered by section 879." Such reliance is misplaced. It is not within the power of this Court to set aside the clear and explicit mandate of a statutory provision. To the extent therefore that this decision conflicts with what was held in People v. Macarandang Macarandang , it no longer speaks with authority. Wherefore, the judgment appealed from is affirmed. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ.,
G.R. Nos. 24116-17 August 22, 1968 CEBU PORTLAND CEMENT COMPANY, plaintiff-appellant, plaintiff-appellant,
vs. MUNICIPALITY OF NAGA, CEBU, ET AL., defendants-appellees. defendants-appellees. Tomas P. Matic, Jr. and Lorenzo R. Mosqueda for plaintiff-appellant. Fernan, Osmeña and Bellaflor for defendants-appellees. FERNANDO, J.: FERNANDO, J.:
In two separate actions, plaintiff-appellant Cebu Portland Cement Company sought to test the validity of the distraint and thereafter the sale at public auction by the principal defendant-appellee, Municipality of Naga, Cebu, of 100,000 bags of cement for the purpose of satisfying its alleged deficiency in the payment of the municipal license tax for 1960, municipal l icense tax for 1961 as well as the penalty, all in the total sum of P204,300.00. The lower court rendered a joint decision sustaining the validity of the action taken by defendant-appellee Municipality of Naga. The c ase is now before us on appeal. We affirm. According to the appealed decision: "From all the evidence, mostly documentary, adduced during the hearing the following facts have been established. The efforts of the defendant Treasurer to collect from the plaintiff the municipal license tax imposed by Amended Ordinance No. 21. Series of 1959 on cement factories located within the Municipality of Naga, Cebu, have met with rebuff time and again. The demands made on the taxpayer ... have not been entirely successful. Finally, the defendant Treasurer decided on June 26, 1961 to avail of the Civil remedies provided for under Section 2304 of the Revised Administrative Code and gave the plaintiff a period of ten days from receipt thereof within which to settle the account, computed as follows ...: Deficiency Municipal License Tax for 1960 — P80,250.00; P80,250.00; Municipal License Tax for 1961 — P90,000.00; P90,000.00; and 20% Penalty — P34,050.00, stating in exasperation, "This is our last recourse as we had exhausted all efforts for an amicable solution of our problem." " 1 It was further shown: "On July 6, 1961, at 11:00 A.M., the defendant Treasurer notified the Plant Manager of the plaintiff that he was "distraining 100,000 bags of Apo cement in satisfaction of your delinquency in municipal license taxes in the total amount of P204,300.00" ... This notice was received by the acting officer in charge of the plaintiff's plant, Vicente T. Garaygay, according to his own admission. At first, he was not in accord with the said letter, asking the defendant Treasurer for time to study the same, but in the afternoon he [acknowledged the] distraint ..." 2 As was noted in the decision, the defendant Treasurer in turn "signed the receipt for goods, articles or effects seized under authority of Section 2304 of the Revised Administrative Code, certifying that he has constructively distrained on July 6, 1961 from the Cebu Portland Cement Company at its plant at Tina-an, Naga, Cebu, 100,000 bags of Apo cement in tanks, and that "the said articles or goods will be sold at public auction to the highest bidder on July 27, 1961, and the proceeds thereof will be utilized in part satisfaction of the account of the said company in municipal licenses and penalties in the total amount of P204,300.00 due the Municipality of Naga Province of Cebu" ..." 3 The lower court likewise found as a fact that on the same day, July 6, 1961, the municipal treasurer posted the notice of sale to the effect that pursuant to the provisions of Section 2305 of the Revised Administrative Code, he would sell at public auction for cash to the highest bidder at the main entrance of the municipal building of the Municipality of Naga, Province of Cebu, Philippines on the 27th day of July, 1961, at 9 o'clock in the morning, the property seized and distrained or levied upon from the Cebu Portland Cement Company in satisfaction of the municipal license taxes and penalties in the amount of P204,300.00, specifying that what was to be sold was 100,000 bags of Apo cement. 4 No sale, as thus announced, was held on July 27, 1961. It was likewise stated in the appealed decision that there was stipulation by the parties to this effect: "1. The auction sale took place on January 30, 1962, ..." 5 In this appeal from the above joint decision, plaintiff-appellant Cebu Portland Cement Company upholds the view that the distraint of the 100,000 bags of cement as well as the sale at public auction thereafter made ran counter to the law. As earlier noted, we do not see it that way. 1. On the validity of the distraint — In In the first two errors assigned, plaintiff-appellant submits as illegal the di straint of 100,000 bags of cement made on July 6, 1961. Its contention is premised on the fact that in the letter of defendant-appellee dated June 26, 1961, requiring plaintiff-appellant to settle its account of P204,300.00, it was given a period of 10 days from receipt within which it could pay, failure to do so being the occasion for the distraint of its property. It is now alleged that the 10-day period of grace was not allowed to lapse, the distraint having taken place on July 6, 1961. It suffices to answer such a contention by re ferring to the explicit language of the law. l aw. According to the Revised Administrative Code: "The remedy by distraint shall proceed as follows: Upon the failure of the person owing any municipal tax or revenue to pay the same, at the time required, the municipal treasurer may seize and distrain any personal property belonging to such person or any property subject to the tax lien, in sufficient quantity to satisfy the tax or charge in question, together with any increment thereto incident to delinquency, and the expenses of the di straint." 6 The clear and explicit language of the law leaves no room for doubt. The municipal treasurer "may seize and distrain any personal property" of the individual or entity subject to the tax upon failure "to pay the same, at the time required ..." There was such a failure on the part of plaintiff-appellant to pay the municipal tax at the time required. The power of the municipal treasurer in accordance with the above provision therefore came into play. 1äwphï1.ñët Whatever might have been set forth in the letter of the municipal treasurer could not change or amend the law it has to be enforced as written. That was what the lower court did. What was done then cannot be rightfully looked upon as a failure to abide by what the statutory provision requires. Time and time again, it has been repeatedly declared by this Court that where the law speaks in clear and categorical language, there is no room for interpretation. There is only room for application. That was what occurred in this case. 7 2. On the validity of the auction sale — The The validity of the auction sale held on January 30, 1962 is challenged in the next two errors assigned as allegedly committed by the lower court. Plaintiff-appellant's argument is predicated on the fact that it was not until January 16, 1962 that it was notified that the public auction sale was to take place on January 29, 1962. It is its view that under the Revised Administrative Administrative Code 8 the sale of the distrained property cannot take place "less than twenty days after notice to the owner or possessor of the property [distrained] ... and the publication or posting of such notice." Why such a contention could not prosper is explained clearly by the lower court in the appealed decision. Thus: "With respect to the claim that the auction sale held on January 30, 1962 pursuant to the distraint was null and void for being contrary to law because not more than twenty days have elapsed from the date of notice, it is believed that the defendant Municipality of Naga and Municipal Treasurer of Naga have substantially complied with the requirements provided for by Section 2305 of the Revised Administrative Code. From the time that the plaintiff was first notified of the distraint on July 6, 1961 up to the d ate of the sale on January 30, 1962, certainly, more than twenty days have e lapsed. If the sale did not take place, as advertised, on July 27, 1961, but only on January 30, 1962, it was due to the requests for deferment made by the plaintiff which unduly delayed the proceedings for collection of the tax, and the said taxpayer should not be allowed now to complain that the required period has not yet elapsed when the intention of the tax collector was already well-publicized for many months." 9 The reasonableness
of the above observation of the lower court cannot be disputed. Under the circumstances, the allegation that there was no observance of the twenty-day period hardly carries conviction. The point is further made that the auction sale took place not on January 29, 1962, as stated in the notice of sale, but on the next day, January 30, 1962. According to plaintiff-appellant: "On this score alone, the sale ..., was illegal as it was not made on the time stated in the notice." 10 There is no basis to sustain such a plea as the finding of the lower court is otherwise. Thus: "On January 16, 1962, the defendant Treasurer informed Garaygay that he would cause the readvertisement for sale at public auction of the 100,000 bags of Apo cement which were under constructive distraint ... On January 19, 1962, the said defendant issued the corresponding notice of sale, which fixed January 30, 1962, at 10:00 A.M., as the date of sale, posting the said notice in public places and delivering copies thereof to the interested parties in the previous notice, ... Ultimately, the bidding was conducted on that day, January 30, 1962, with the representatives of the Provincial Auditor and Provincial Treasurer present. Only two bidders submitted sealed bids. After the bidding, the defendant-treasurer informed the plaintiff that an award was given to the winning bidder, ..." 11 This being a direct appeal to us, plaintiff-appellant must be deemed to have accepted as conclusive what the lower court found as established by the evidence, only questions of law being brought to us for review. It is the established rule that when a party appeals directly to this Court, he is deemed to have waived the right to dispute any finding of fact made by the court below. 12 WHEREFORE, the decision of the lower court dated 23, 1964, i s affirmed in toto. With costs against plaintiff-appellant. 1äwphï1.ñët Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Angeles, JJ., concur.
G.R. No. L-26419 October 16, 1970 GEDEON G. QUIJANO and EUGENIA T. QUIJANO, petitioners-appellants,
vs. THE DEVELOPMENT BANK OF THE PHILIPPINES and THE EX-OFICIO SHERIFF OF MISAMIS OCCIDENTAL, respondents-appellees. J. Alaric P. Acosta for petitioners-appellant. Esperanza Valenzoga for respondents-appellees. BARREDO, J.:.
Appeal from the decision of the Court of First Instance of Misamis Occidental in its Special Civil Case No. 2519, dismissing the petition for mandamus with prayer for a writ of preliminary injunction filed therein by the herein petitioners-appellants Gedeon G. Quijano and Eugenio T. Quijano to compel the herein respondent-appellee Development Bank of the Philippines to accept said petitioners-appellants' back pay certificate payment of their loan from the said appellee Bank, and to restrain the herein respondent-appellee ex-oficio sheriff of the province of Misamis Occidental from proceeding with the scheduled foreclosure sale of the real properties the above-named appellant spouses had mortgaged with the Development Bank of the Philippines to secure the loan aforementioned. The said appealed decision was based on the following: STIPULATION OF FACTS. The undersigned parties, thru counsels, hereby submit the foregoing stipulation of facts, to wit: I. That the petitioners filed an application for an urban estate loan with the Rehabilitation Finance Corporation (RFC), predecessor-in-interest of the herein respondent-bank, in the amount of P19,500.00; II. That the petitioners' urban real estate loan was approved per RFC Board Resolution No. 2533 on April 30, 1953; III. That the mortgage contract was executed by the petitioners in favor of the respondent-bank on March 23, 1954; IV. That the said loan of P19,500.00 was to be received by the petitioners in several releases, subject among others, to the following conditions:. "(1) That the amount of P4,200.00 shall be released only after:. "(a) the execution and registration of the mortgage contract; "(b) the presentation of a duly approved building permit; "(c) the construction has been started and the value of the work done amounted to P6,500.00;. "(d) the submission of the certificate of title covering Psu-136173, free form any encumbrance and "(e) the submission of evidence showing full payment of current estate taxes; (2) That the subsequent releases shall not be more than 100% of the value of the construction completed in excess of P6,500.00; that all releases shall be made against the payroll of workers engaged in the project, receipts of all materials used and that there are no unpaid labor or unpaid materials; (3) That a sufficient amount may be withheld until the building is completed and painted and found in accordance with the plans and specifications submitted; (4) That the amount of insurance of the building, when completed, shall not be less than P18,000.00, which shall be secured by the mortgagee, in accordance with its Board Resolution No. 3395, series of 1947; (5) That the construction and painting of the building shall be completed within 120 days from the date of the mortgage contract; (6) That the release of this loan is subject to the availability of funds; (7) That the lien appearing on the face of the title shall be cancelled, otherwise, Luciana Jimenez shall sign as co-mortgagor; that this mortgage contract was registered on March 23, 1954 with the Register of Deeds of Misamis Occidental at Oroquieta; "V. That the first release of P4,200 was made on April 29, 1954, and the other releases were made subsequent thereafter; "VI. That as of July 31, 1965, the outstanding obligation of the petitioners with the respondent-bank, including interests, was P13,983.59; "VII. That on July 27, 1965, petitioner Gedeon Quijano, as holder of Acknowledgment No. 10181, wrote the respondent-bank in Manila offering to pay in the amount of P14,000.00 for his outstanding obligation with the respondent-bank, out of the proceeds of his back pay pursuant to Republic Act No. 897; "VIII. That the respondent-bank, thru its Ozamis Branch advised the petitioners of the non-acceptance of his offer on the ground that the loan was not incurred before or subsisting on June 20, 1953 when Republic Act 897 was approved;
"IX. That the respondent-bank, thru its Ozamis City Branch, filed on October 14, 1965, an application for the foreclosure of real estate mortgage executed by the petitioners, and that acting on the application of the respondent-bank, the Provincial Sheriff, thru his deputies, scheduled the public auction sale for January 18, 1966, after advising petitioner Gedeon Quijano of the application for foreclosure filed by the respondent-bank; "X. That the parties herein agree to transfer the auction sale scheduled for January 16, 1966 to February 18, 1966, without the necessity of republication of the notice of sale." Upon these facts and the submission of the parties that the only issue is whether or not the obligation of the petitioners was subsisting at the time of the approval of Republic Act No. 897, the Amendatory Act of Julie 20, 1953 to Republic Act 304, the original back pay law, the trial court dismissed the petition, as already stated, and directed respondent sheriff to proceed and continue with the public auction sale of the property mortgaged in accordance with the foreclosure application of respondent Development Bank of the Philippines after due notice to petitioners. In their appeal, petitioners' sole assignment of error is that: "The trial court erred in declaring that the loan of the petitioners-appellants was not subsisting when Republic Act No. 897 was enacted on June 20, 1953." The appeal has no merit. The pertinent portions of the controlling provisions of the aforementioned Back Pay Law, as amended by Republic Act No. 897 on June 20, 1953, 1 read as follows:. SEC. 2. The Treasurer of the Philippines shall, upon application of all persons specified in section one hereof and within one year from the approval of this Amendatory Act, and under such rules and regulations as may be promulgated by the Secretary of Finance, acknowledge and file requests for the recognition of the right to the Salaries and wages as provided in section one hereof and notice of such acknowledgment shall be issued to the applicant which shall state the total amount of such salaries or wages due the applicant, and certify that it shall be redeemed by the Government of the Philippines within ten years from the date of their issuance without interests: Provided, That upon application and subject to such rules and regulations as may be approved by the Secretary of Finance a certificate of indebtedness may be issued by the Treasurer of the Philippines covering the whole or a part of the total salaries and wages the right to which has been duly acknowledged and recognized, provided that the face value of such certificate of indebtedness shall not exceed the amount that the applicant may need for the payment of (1) obligations subsisting at the time of the approval of this Amendatory Act for which the applicant may directly be liable to the government or to any of its branches or instrumentalities, or the corporations owned or controlled by the Government, or to any citizen of the Philippines, or to any association or corporation organized under the laws of the Philippines, who may be willing to accept the same for such settlement ; ...
It is indeed settled that under the above provisions, the Government or any of its agencies does not have any discretion in the acceptance of back pay certificates, 2 when they are used by the applicants or original holders themselves for the settlement of any of the obligations or liabilities specifically enumerated in the law. 3 It is equally clear, however, that the same provisions expressly require that the obligations — for which certificates of indebtedness may be accepted as payments of — must be subsisting at the time of the approval of Republic Act No. 897; hence when, as in the instant case, such back pay certifi cates are offered in payment to a government-owned corporation of an obligation thereto which was not subsisting at the time of the enactment of said amendatory Act on June 20, 1953, which corporation may not, legally be compelled to accept the certificates. It is true that appellants' application for an urban real estate loan was approved by appellee bank on April 80, 1953. It appears, however, that appellants did not avail of it until much later, as in fact, they executed the mortgage contract only on March 23, 1954, and furthermore, that the release of the amount of the said loan of P19,500.00 was to be made in installments and subject to compliance with certain conditions by said appellants. Under these circumstances, Our ruling in the case of Rodriguez vs. Development Bank of the Philippines 4 is controlling. In that case, Rodriguez obtained a loan from the said Development Bank of the Philippines to be received by him in several releases and to be paid later in installments, under the terms and conditions specified in the loan agreement. Pursuant to said agreement, Rodriguez received the first release in the sum of P5,000.00 on May 27, 1953, while the subsequent releases covering the P9,000.00 — balance of the loan were all availed of and received by him later than June, 1953. Later, Rodriguez paid the installments as they fell due. When a balance of about P10,000.00 remained unpaid, Rodriguez offered to pay the said outstanding balance of the loan with his back pay certificate. The Bank refused at first to accept the said tender of payment in certificate, and when it accepted the same later, it limited its acceptance only to the amount of P5,000.00 representing the portion of the loan released before the passage of Republic Act No. 897, although the amount of the back pay certificate offered by Rodriguez was more than sufficient to cover the total unpaid balance of the loan. So, Rodriguez instituted an action for mandamus in the Court of First Instance of Davao to compel the Bank to accept his back pay certificate in payment of his whole outstanding obligation or, in other words, even for the portions of the loan corresponding to the releases made after June 20, 1953. This action was dismissed by the trial court and upon appeal to this Court, the dismissal was affirmed upon the following rationale:. It can not be said that appellant became indebted to the Bank for the total amount of P14,000.00 from the date of the agreement. The releases of the balance of the agreed loan were made dependent on certain conditions (see additional conditions mentioned in paragraph 4 of the stipulation of facts, supra) among which is the availability of funds. Non-compliance with any of these conditions will not entitle the appellant to the release of the balance of the agreed loan and conversely, will not entitle the bank to hold the appellant liable for the unreleased amounts. Consequently, we hold, as did the trial court, that:. "... the amounts released in July, 1953 and thereafter cannot be considered as obligations subsisting in June, 1953. The defendant may be compelled to accept a back pay certificate in payment of obligations subsisting when the Amendatory Act was approved (Sec. 2, Republic Act 897).têñ.£îhqw⣠Republic Act 897 was approved on June 20, 1953. The defendant may not be compelled to accept plaintiff's back pay certificate in payment of the amounts released after June 20, 1953." The case of Sabelino v. RFC (G.R. No. L-11790, Sept. 30, 1958) relied upon by appellant is irrelevant, as the mortgage indebtedness sought to be paid with appellee's back pay certificate therein, appears to have subsisted prior to the approval of Republic Act No. 897. ... Herein appellants' situation is even worse than that of Rodriguez. Here appellants actually availed of their approved loan only about nine (9) months after the enactment of Republic Act 897 and the corresponding releases thereof were received by appellants only after the execution of the mortgage contract on March 23, 1954. Undoubtedly, notwithstanding the approval by the appellee Development Bank of the Philippines (RFC) of appellants' loan application on April 30, 1953, appellants did not thereby incur any obligation to pay the same; only after the corresponding amounts were released to appellants after March 23, 1954 did such obligation attach; and it cannot, therefore, be said that the said loan was an obligation subsisting at the time of the approval of Republic Act No. 897 on June 20, 1953.
It may be truly said, as contended by appellants, that when their application for the loan was approved by the appellee Bank on April 30, 1953, an agreement was perfected between them and said Bank, but it should be noted that under such agreement the only enforceable obligation that was created was that of the Bank to grant the loan applied for, whereas the obligation of appellants to pay the same could not have arisen until after the amount of the loan has been actually released to them; and said release was even subject to their compliance with certain conditions specif ied in the mortgage contract executed after the approval already of Republic Act 897. Appellants' appeal that a more liberal construction of the law would enable "many crippled or disabled veterans, or their wives and orphans, or those who had in one way or another unselfishly sacrificed or contributed to the cause of the last war" to take advantage of their back pay certificates, does deserve sympathy, for indeed, among the avowed purposes of the said law are: "First, to serve as a source of financial aid to needy veterans, like crippled or disabled veterans, and to their wives and orphans. Secondly, to give recognition to the sacrifices of those who joined the last war, and particularly to those who have given their all for the cause of the last war." (Congressional Record No. 61, 2nd Congress, 4th Regular Session, May 6, 1953, page 74, as quoted in Florentino, et al. vs. PNB, 98 Phil. 959, 961-963). têñ.£îhqw⣠On the other hand, however, We cannot see any room for interpretation or construction in the clea r and unambiguous language of the above-quoted provision of law. This Court has steadfastly adhered to the doctrine that its first and fundamental duty is the application of the law according to its express terms, interpretation being called for only when such literal application is impossible.5No process of interpretation or construction need be resorted to here a provision of law peremptorily calls for application. Where a requirement or condition is made in explicit and unambiguous terms, no discretion is left to the judiciary. It must see to it that its mandate is obeyed. 6 Thus, even before the amendment of the Back Pay Law, when said law limited the applicability of back pay certificates to "obligations subsisting at the time of the approval of this Act," this Court has ruled that obligations contracted after its enactment on June 18, 1948 cannot come within its purview. Since the debt of appellants was contracted on November 24, 1948, they could not validly seek to discharge it by application of their back pay certificate under Republic Act 304, on June 18, 1948, because that Act, in terms, limited any such application to "obligations subsisting at the time of the approval of this Act". (Sec. 2) 7 WHEREFORE, the judgment of the trial court is affirmed. No costs. Reyes, J.B.L., Act. C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Villamor and Makasiar, JJ., concur
G.R. No. , 127 SCRA 419
Republic of the Philippines SUPREME COURT
Manila EN BANC DECISION December 31, 1983 G.R. No. , , vs. ,. , J.:
This Court is confronted once again with the question of whether or not it is a court or a labor arbiter that can pass on a suit for damages filed by the employer, here private respondent Zamboanga Wood Products. Respondent Judge Carlito A. Eisma 1 then of the Court of First Instance, now of the Regional Trial Court of Zamboanga City, was of the view that it is a court and denied a motion to dismiss filed by petitioners National Federation of labor and Zambowood Monthly Employees Union, its officers and members. It was such an order dated July 20, 1982 that led to the filing of this certiorari and prohibition proceeding. In the order assailed, it was required that the officers and members of petitioner union appear before the court to show cause why a writ of preliminary injunction should not be issued against them and in the meanwhile such persons as well as any other persons acting under their command and on their behalf were "temporarily restrained and ordered to desist and refrain from further obstructing, impeding and impairing plaintiff's use of its property and free ingress to or egress from plaintiff's Manufacturing Division facilities at Lumbayao, Zamboanga City and on its road right of way leading to and from said plaintiff's facili ties, pending the determination of the litigation, and unless a contrary order is issued by this Court." 2 The record discloses that petitioner National Federation of Labor, on March 5, 1982, filed with the Ministry of Labor and Employment, Labor Relations Division, Zamboanga City, a petition for direct certification as the sole exclusive collective bargaining representative of the monthly paid employees of the respondent Zamboanga Wood Products, Inc. at its manufacturing plant in Lumbayao, Zamboanga City. 3 Such employees, on April 17, 1982 charged respondent firm before the same office of the Ministry of Labor for underpayment of monthly living allowances. 4 Then c ame, on May 3, 1982, from petitio ner union, a notice of strike against private respondent, alleging illegal termination of Dionisio Estioca, president of the said local union; unfair labor practice, non-payment of living allowances; and "employment of oppressive alien management personnel without proper permit. 5 It was followed by the union submitting the minutes of the declaration of strike, "i ncluding the ninety (90) ballots, of which 79 voted for yes and three voted for no." 6 The strike began on May 23, 1982. 7 On July 9, 1982, private respondent Zambowood filed a complaint with respondent Judge against the officers and members of petitioners union, for "damages for obstruction of private property with prayer for preliminary injunction and/or restraining order." 8 It was alleg ed that defendants, now petitioners, blockaded the road leading to its manufacturing division, thus preventing customers and suppliers free ingress to or egress from such premises. 9 Six days later, there was a motion for the dismissal and for the dissolution of the restraining order and opposition to the issuance of the writ of preliminary injunction filed by petitioners. It was contended that the acts complained of were incidents of picketing by defendants then on strike against private respondent, and that therefore the exclusive jurisdiction belongs to the Labor Arbiter pursuant to Batas Pambansa Blg. 227, not to a court of first instance.10 There was, as noted earlier, a motion to dismiss, which was denied. Hence this petition for certiorari. Four days after such petition was filed, on August 3, 1982, this Court required respondents to answer and set the plea for a preliminary injunction to be heard on Thursday, August 5, 1982. 11 After such hearing, a temporary restraining order was issued, "directing respondent Judge and the commanding officer in Zamboanga and his agents from enforcing the ex-parte order of injunction dated July 20, 1982; and to restrain the respondent Judge from proceeding with the hearing of the until otherwise case effective as of [that] date and continuing ordered by [the] Court. In the exercise of the right to peaceful picketing, petitioner unions must abide strictly with Batas Pambansa Blg. 227, specifically Section 6 thereof, amending Article 265 of the Labor Code, which now reads: '(e) No person engaged in picketing shall commit any act of violence, coercion or i ntimidation or obstruct the free ingress to or egress from the employer's premises for lawful purposes, or obstruct public thoroughfares.' " 12 On August 13, 1982, the answer of private respondent was filed sustaining the original jurisdiction of respondent Judge and maintaining that the order complained of was not in excess of such jurisdiction, or issued with grave abuse of discretion. Solicitor General Estelito P. Mendoza, 13 on the other hand, instead of filing an answer, submitted a Manifestation in lieu thereof. He met squarely the issue of whether or not respondent Judge had jurisdiction, and answered in the negative. He (i)ncluded that "the instant petition has merit and should be given due course."
He traced the changes undergone by the Labor Code, citing at the same time the decisions issued by this Court after each of such changes. As pointed out, the original wording of Article 217 vested the labor arbiters with jurisdictional. 14 So i t was applied by this Court in Garcia v. Martinez 15 and in Bengzon v. Inciong. 16 On May 1, 1978, however, Presidential Decree No. 1367 was issued, amending Article 217, and provided "that the Regional Directors shall not indorse and Labor Arbiters shall not entertain claims for moral and other forms of damages." 17 The ordinary courts were thus vested with jurisdiction to award actual and moral damages in the case of illegal dismissal of employees. 18 That is not, as pointed out by the Solicitor General, the end of the story, for on May 1, 1980, Presidential Decree No. 1691 was issued, further amending Article 217, returning the original jurisdiction to the labor arbiters, thus enabling them to decide "3. All money claims of workers, including those based on non-payment or underpayment of wages, overtime compensation, separation pay and other benefits provided by law or appropriate agreement, except claims for employees compensation, social security, medicare and maternity benefits; [and] (5) All other claims arising from employer-employee relations unless expressly excluded by tills Code." 19 An equally conclusive manifestation of the lack of jurisdiction of a court of first instance then, a regional trial court now, is Batas Pambansa Blg. 130, amending Article 217 of the Labor Code. It took effect on August 21, 1981. Subparagraph 2, paragraph (a) is now worded thus: "(2) those that involve wages, hours of work and other terms and conditions of employment." 20 This is to be compared with the former phraseology "(2) unresolved issue in collective bargaining, including those that involve wages, hours of work and other terms and conditions of employment." 21 It is to be noted that Batas Pambansa Blg. 130 made no change with respect to the original and exclusive jurisdiction of Labor Arbiters with respect to money claims of workers or claims for damages arising from employeremployee relations. Nothing becomes clearer, therefore, than the meritorious character of this petition. certiorari and prohibition lie, respondent Judge being devoid of jurisdiction to act on the matter. 1. Article 217 is to be applied the way it is worded. The exclusive original jurisdiction of a labor arbiter is therein provided for explicitly. It means, it can only mean, that a court of first instance judge then, a regional trial court judge now, certainly acts beyond the scope of the authority conferred on him by law when he entertained the suit for damages, arising from picketing that accompanied a strike. That was squarely within the express terms of the law. Any deviation cannot therefore be tolerated. So it has been the constant ruling of this Court even prior to Lizarraga Hermanos v. Yap Tico, 22 a 1913 decision. The ring ing words of the ponencia of Justice Moreland still call for obedience. Thus, "The first and fundamental duty of courts, in our judgment, is to apply the law. Construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them." 23 It is so even after the lapse of sixty years. 24 2. On the precise question at issue under the law as it now stands, this Court has spoken in three decisions. They all reflect the utmost fidelity to the plain command of the law that it is a labor arbiter, not a court, that ossesses original and exclusive jurisdiction to decide a claim for damages arising from picketing or a strike. In Pepsi-Cola Bottling Co. v. Martinez, 25 the issue was set forth in the opening paragraph, in the ponencia of Justice Escolin: "This petition for certiorari, prohibition and mandamus raises anew the legal question often brought to this Court: Which tribunal has exclusive jurisdiction over an action filed by an employee against his employer for recovery of unpaid salaries, separation benefits and damages ? the court of general jurisdiction or the Labor Arbiter of the National Labor Relations Commission [NLRC]?" 26 It was categorically held: "We rule that the Labor Arbiter has exclusive jurisdiction over the case." 27 Then came this portion of the opinion: "Jurisdiction over the subject matter in a judicial proceeding is conferred by the sovereign authority which organizes the court; and it is given only by law. Jurisdiction is never presumed; it must be conferred by law in words that do not admit of doubt. Since the jurisdiction of courts and judicial tribunals is derived exclusively from the statutes of the forum, the issue before us should be resolved on the basis of the law or statute now in force. We find that law in presidential Decree 1691 which took effect on May 1, 1980, Section 3 of which reads as follows: ... Article 217. Jurisdiction of Labor Arbiters and the Commission. ? (a) The Labor Arbiters shall have the original and exclusive jurisdiction to hear and decide the following cases involving all workers, whether agricultural or nonagricultural: ... 3. All money claims of workers, including those based on nonpayment or underpayment of wages, overtime compensation, separation pay and other benefits provided by law or appropriate agreement, except claims for employees' compensation, social security, medicare and maternity benefits; 4. Cases involving household services; and 5. All other claims arising from employer-employee relations, unless expressly excluded by this Code." 28 That same month, two other cases were similarly decided, Ebon v. De Guzman 29 and Aguda v. Vallejos. 30 3. It is regrettable that the ruling in the above three decisions, decided in March of 1982, was not followed by private respondent when it filed the complaint for damages on July 9, 1982, more than four months later. 31 On this point, reference may be made to our decision in National Federation of Labor, et al. v. The Honorable Minister of Labor and Employment, 32 promulgated on September 15, 1983. In that case, the question involved was the failure of the same private respondent, Zamboanga Wood Products, Inc., to admit the striking petitioners, eighty-one in number, back to work after an order of Minister Blas F. Ople certifying to the National Labor Relations Commission the labor dispute for compulsory arbitration pursuant to Article 264 (g) of the Labor Code of the Philippines. It was noted in the first paragraph of our opinion in that case: "On the face of it, it seems difficult to explain why private respondent would not comply with such order considering that the request for compulsory arbitration came from it. It ignored this notification by the presidents of the labor unions involved to its resident manager that the striking employees would lift their picket line and start returning to work on August 20, 1982. Then, too, Minister Ople denied a partial motion for reconsideration insofar as the return-to-work aspect is concerned which reads: 'We find no merit in the said Motion for Reconsideration. The Labor code, as amended, specifically Article 264 (g), mandates that whenever a labor dispute is certified by the Minister of Labor and Employment to the National Labor Relations Commission for compulsory arbitration and a strike has already taken place at the time of certification, "all striking employees shall immediately return to work and the employees shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike." ' " 33 No valid distinction can be made between the exercise of compulsory arbitration vested in the Ministry of Labor and the jurisdiction of a labor arbiter to pass over claims for damages in the light of the express provision of the Labor Code as set forth in Article 217. In both cases, it is the Ministry, not a court of justice, that is vested by law with competence to act on the matter. 4. The issuance of Presidential Decree No. 1691 and the enactment of Batas Pambansa Blg. 130, made clear that the exclusive and original jurisdiction for damages would once again be vested in labor arbiters. It c an be affirmed that even if they were not that explicit, history has vindicated the view that in the appraisal of what was referred to by Philippine American Management & Financing Co., Inc. v. Management & Supervisors Association of the Philippine-American Management & Financing Co., Inc. 34 as "the rather thorny question as to where in labor matters the dividing line i s to be drawn" 35 between the power lodged in an administrative body and a court, the unmistakable trend has been to refer it to the former. Thus: "Increasingly, this Court has been committed to the view that unless the law speaks clearly and unequivocally, the choice should fall on [an administrative agency]." 36 Certainly, the present Labor Code is even more committed to the view that on policy grounds, and equally so in the interest of greater promptness in the disposition of labor matters, a court is spared the often onerous task of determining what essentially is a factual matter, namely, the damages that may be incurred by either labor or management as a r esult of disputes or controversies arising from employer-employee relations. WHEREFORE, the writ of certiorari is granted and the order of July 20, 1982, issued by respondent Judge, is nullified and set aside. The writ of prohibition is likewise granted and respondent Judge, or whoever acts in his behalf in the Regional Trial Court to which
this case is assigned, is enjoin from taking any further action on Civil Case No. 716 (2751), except for the purpose of dismissing it. The temporary restraining order of August 5, 1982 i s hereby made permanent. Teehankee, Makasiar, Aquino, Guerrero, Melencio-Herrera, Plana, Escolin Relova and Gutierrez, Jr., JJ., concur. Concepcion Jr., J., took no part. De Castro, J., is on leave. G.R. No. , 88 SCRA 616 January 31, 1979 G.R. No. , , vs. ,. , J.:
In this mandamus petition dismissed by the lower court, petitioner-appellant would seek a reversal of such decision relying on what it considered to be a right granted by Section 62 of the Republic Act No. 2023, more specifically the first two paragraphs thereof: "... (1) A member of a cooperative may, notwithstanding the provisions of existing laws, execute an agreement in favor of the co-operative authorizing his employer to deduct from the salary or wages payable to him by the employer such amount as may be specified in the agreement and to pay the amount so deducted to the co-operative in satisfaction of any debt or other demand owing from the member to the co -operative. (2) Upon the exemption of such agreement the employer shall i f so required by the co-operative by a request in writing and so long as such debt or other demand or any part of it remains unpaid, make the claimant and remit forth with the amount so deducted to the co-operative." 1 To show that such is futile, the appealed decision, as quoted in the brief for petitioner-appellant, stated the following: "Then petitioner contends that under the above provisions of Rep. Act 2023, the loans granted by credit union to its members enjoy first priority in the payroll collection from the respondent's employees' wages and salaries. As can be clearly seen, there is nothing in the provision of Rep. Act 2023hereinabove quoted which provides that obligation of laborers and employees payable to credit unions shall enjoy first priority in the deduction from the employees' wages and salaries. The only effect of Rep. Act 2023 is to compel the employer to deduct from the salaries or wages payable to members of the employees' cooperative credit unions the employees' debts to the union and to pay the same to the credit union. In other words, if Rep. Act 2023 had been enacted, the employer could not be compelled to act as the collecting agent of the employees' credit union for the employees' debt to his credit union but to contend that the debt of a member of the employees cooperative credit union as having first priority in the matter of deduction, is to write something into the law which does not appear. In other words, the mandatory character of Rep. Act 2023 is only to compel the employer to make the deduction of the employees' debt from the latter's salary and turn this over to the employees' credit union but this mandatory character does not convert the credit union's credit into a first priority credit. If the legislative intent in enacting pars. 1 and 2 of Sec. 62 of Rep. Act 2023 were to give first priority in the matter of payments to the obligations of employees in favor of their credit unions, then, the law would have so expressly declared. Thus, the express provisions of the New Civil Code, Arts. 2241, 2242 and 2244 show the legislative intent on preference of credits. 2 Such an interpretation, as could be expected, found favor with the respondent-appellee, which, in its brief, succinctly pointed out "that there is nothing in said provision from which it could be implied that it gives top priority to obligations of the nature of that payable to petitioner, and that, therefore, respondent company, in issuing the documents known as Exhibit "3" and Exhibit "P", which establish the order of priority of payment out of the salaries of the employees of respondent-appellee, did not violate the above-quoted Section 62 of Republic Act 2023. In promulgating Exhibit "3", [and] Exhibit "P" respondent, in effect, implemented the said provision of law. 3 This petition being one for mandamus and the provision of law relied upon being clear on its face, it would appear that no favorable action can be taken on this appeal. We affirm. 1. The applicable provision of Republic Act No. 2023 quoted earlier, speaks for itself. There is no ambiguity. As thus worded, it was so applied. Petitioner-appellant cannot therefore raise any valid objection. For the lower court to view it otherwise would have been to alter the law. That cannot be done by the judiciary. That is a function that properly appertains to the legislative branch. As was pointed out in Gonzaga v. Court of Appeals: 4 "It has been repeated time and time again that where the statutory nor m speaks unequivocally, there is nothing for the courts to do except to apply it. The law, leaving no doubt as to the scope of its operation, must be obeyed. Our decisions have consistently born to that effect. 5. 2. Clearly, then, mandamus does not lie. Petitioner-appellant was unable to show a clear legal right. The very law on which he would base his action fails to supply any basis for this petition. A more rigorous analysis would have prevented him from ins tituting a a suit of this character. In J.R.S. Business Corporation v. Montesa, 6 this Court held. "Man-damus is the proper remedy i f it could be shown that there was neglect on the part of a tribunal in the performance of an act, which specifically the law enjoins as a duty or an unlawful exclusion of a party from the use and enjoyment of a right to which he is entitled. 7 The opinion continued in this wise:"According to former Chief Justice Moran," only specific legal rights may be enforced by mandamus if they are clear and certain. If the legal rights are of the petitioner are not well defined, clear, and certain, the petition must be dismissed. In support of the above view, Viuda e Hijos de Crispulo Zamora v. Wright was cited. As was there categorically stated: "This court has held that it is fundamental that the duties to be enforced by mandamus must be those which are cl ear and enjoined by law or by reason of official station, and that petitioner must have a clear, legal right to the thing and that it must be the le gal duty of the defendant to perform the required act.' As expressed by the then Justice Recto in a subsequent opinion: "It is well establish that only specific legal rights are enforceable by mandamus, that the right sought to be enforced must be certain and clear, and that the writ not issue in cases where the right is doubtful." To the same effect is the formulation of such doctrine by former Justice Barrera: "Stated otherwise, the writ never issues in doubtful cases. It neither confers powers nor imposes duties. It is simply a command to exercise a power already possessed and to perform a duty already imposed." 8 So it has been since then. 9 The latest reported case, Province. of Pangasinan v. Reparations Commission, 10 this court speaking through Justice Concepcion Jr ., reiterated such a well-settled doctrine: "It has also been held that it is essential to the issuance of the writ of mandamus that the plaintiff should have a clear legal right to the thing demanded, and it must be the imperative duty of the defendant to perform the act required. It never issues in doubtful cases. 11 WHEREFORE, the appealed decision is affirmed. No pronouncement as to costs. Barredo, Antonio, Concepcion, Jr., Santos and Abad Santos, JJ., concur. Aquino, J., took no part
G.R. No. L-68729 May 29, 1987
RADIO COMMUNICATIONS OF THE PHILIPPINES, INC., petitioner, vs. NATIONAL TELECOMMUNICATIONS COMMISSION and KAYUMANGGI RADIO NETWORK INCORPORATED, respondents.
GUTIERREZ, JR, J.: This petition seeks the reversal of the decision of the National Telecommunications Commission (NTC) which ordered petitioner Radio Communications of the Philippines, Incorporated (RCPI) to desist from operating its radio telephone services in Catarman, Northern Samar; San Jose, Occidental Mindoro; and Sorsogon, Sorsogon. Petitioner has been operating a radio communications system since 1957 under its legislative franchise granted by Republic Act No. 2036 which was enacted on June 23, 1957. In 1968, the petitioner established a radio telegraph service in Sorsogon, Sorsogon. In 1971, another radio telegraph service was put up in San Jose, Mindoro followed by another in Catarman, Samar in 1976. The installation of radio telephone services star ted in 1971 in San Jose, Mindoro; then in Sorsogon, Sorsogon and Catarman, Samar in 1983. In a decision dated June 24, 1980 in NTC Case No. 80-08, private respondent Kayumanggi Radio Network Incorporated was authorized by the public respondent to operate radio communications systems in Catarman, Samar and in San Jose, Mindoro. On December 14, 1983, the private respondent filed a complaint with the NTC alleging that the petitioner was operating in Catarman, Samar and in San Jose, Mindoro without a certificate of public covenience and necessity. The petitioner, on the other hand, counter-alleged that its telephone services in the places subject of the complaint are covered by the legislative franchise recognized by both the public respondent and its predecessor, the Public Service Commission. In its supplemental reply, the petitioner further stated that it has been in operation in the questioned places long before private respondent Kayumanggi filed its application to operate in the same places. After conducting a hearing, NTC, in its decision dated August 22, 1984 ordered petitioner RCPI to immediately cease or desist from the operation of its radio telephone services in Catarman Northern Samar; San Jose, Occidental Mindoro; and Sorsogon, Sorsogon stating that under Executive Order No. 546, a certificate of public convenience and necessity is mandatory for the operation of communication utilities and services including radio communications. On September 4, 1984, the petitioner filed a motion for reconsideration which was denied in an order dated September 12, 1984. On October 1, 1984, the present petition was filed raising the issue of whether or not petitioner RCPI, a grantee of a legislative franchise to operate a radio company, is required to secure a certificate of public convenience and necessity before it can validly operate its radio stations including radio telephone services in Catarman, Northern Samar; San Jose, Occidental Mindoro; and Sorsogon, Sorsogon. The petitioner's main argument states that the abolition of the Public Service Commission under Presidential Decree No. 1 and the creation of the National Telecommunications Commission under Executive Order No. 546 to replace the defunct Public Service Commission did not affect sections 14 and 15 of the Public Service Law (Commonwealth Act. No. 146, as amended). The provisions of the Public Service Law pertinent to the petitioner's allegation are as follows: Section 13. (a) the Commission shall have jurisdiction, supervision, and control over all public services and their franchises, equipment and other properties, and in the exercise of its authority, it shall have the necessary powers and the aid of public force: ... Section 14. The following are exempted from the provisions of the preceding section: xxx xxx xxx (d) Radio companies except with respect to the fixing of rates; xxx xxx xxx Section 15. With the exception of those enumerated in the preceding section, no public service shall operate in the Philippines without possessing a valid and subsisting certificate from the Public Service Commission, known as "certificate of public convenience," or "certificate of convenience and public necessity," as the case may be, to the effe ct that the operation of s aid service and the authorization to do business will promote the public interests in a proper and suitable manner. ... We find no merit in the petitioner's contention. Pursuant to Presidential Decree No. 1 dated September 23,1972, reorganizing the executive branch of the National Government, the Public Service Commission was abolished and its functions were transferred to three specialized regulatory boards, as follows: the Board of Transportation, the Board of Communications and the Board of Power and Waterworks. The functions so transferred were still subject to the limitations provided in sections 14 and 15 of the Public Service Law, as amended. With the enactment of Executive Order No. 546 on July 23, 1979 implementing P.D. No.1, the Board of Communications and the Telecommunications Control Bureau were abolished and their functions were transferred to the National Telecommunications Commission (Sec. 19 (d), Executive Order No. 546). Section 15 of said Executive Order spells out the functions of the National Telecommunications Commission as follows: Sec. 15. Functions of the Commission.-The Commission shall exercise the following functions: a. Issue Certificate of Public Convenience for the operation of communications utilities and services, radio communications petitions systems, wire or wireless telephone or telegraph system, radio and television broadcasting system and other similar public utilities; b. Establish, prescribe and regulate areas of operation of particular operators of public service communications; and determine and prescribe charges or rates pertinent to the operation of such public utility facilities and services except in cases where charges or rates are established by international bodies or associations of which the Philippines is a participating member or by bodies recognized by the Philippine Government as the proper arbiter of such charges or rates; c. Grant permits for the use of radio frequencies for wireless telephone and telegraph systems and radio communication systems including amateur radio stations and radio and television broadcasting systems; d. Sub-allocate series of frequencies of bands allocated by the International Telecommunications Union to the specific services; e. Establish and prescribe rules, regulations, standards, specifications in all cases related to the issued Certificate of Public Convenience and administer and enforce the same; f. Coordinate and cooperate with government agencies and other entities concerned with any aspect involving communications with a view to continuously improve the communications service in the country; g. Promulgate such rules and regulations, as public safety and interest may require, to encourage a larger and more effective use of communications, radio and television broadcasting facilities, and to maintain effective competition among private entities in these activities whenever the Commission finds it reasonably feasible; h. Supervise and inspect the operation of radio stations and telecommunications facilities; i. Undertake the examination and licensing of radio operators; j. Undertake, whenever necessary, the registration of radio transmitters and transceivers; and k. Perform such other functions as may be prescribed by law. It is clear from the aforequoted provision that the exemption enjoyed by radio companies from the jurisdiction of the Public Service Commission and the Board of Communications no longer exists because of the changes effected by the Reorganization
Law and implementing executive orders. The petitioner's claim that its franchise cannot be affected by Executive Order No. 546 on the ground that it has long been in operation since 1957 cannot be sustained. A franchise started out as a "royal privilege or (a) branch of the King's prerogative, subsisting in the hands of a subject." This definition was given by Finch, adopted by Blackstone, and accepted by every authority since (State v. Twin Village Water Co., 98 Me 214, 56 A 763 (1903)). Today, a franchise, being merely a privilege emanating from the sovereign power of the state and owing its existence to a grant, is subject to regulation by the state itself by virtue of its police power through its administrative agencies. We ruled in Pangasinan transportation Co., Inc. v. Public Service Commission (70 Phil. 221) that: ... statutes enacted for the regulation of public utilities, being a proper exercise by the State of its police power, are applicable not only to those public utilities coming into existence after its passage, but likewise to those already established and in operation ... Executive Order No. 546, being an implementing measure of P.D. No. I insofar as it amends the Public Service Law (CA No. 146, as amended) is applicable to the petitioner who must be bound by its provisions. The petitioner cannot install and operate radio telephone services on the basis of its legislative franchise alone. The position of the petitioner that by the mere grant of its franchise under RA No. 2036 it can operate a radio communications system anywhere within the Philippines is erroneous. Section 1 of said statute reads: Section 1. Subject to the provisions of the Constitution, and to the provisions, not inconsistent herewith, of Act Numbered Three thousand eight hundred and forty-six, entitled.' An Act providing for the regulation of radio stations and radio communications in the Philippine Islands, and for other purposes;' Commonwealth Act Numbered One hundred forty-six, known as the Public Service Act, and their amendments, and other applicable laws, there is hereby granted to the Radio Communications of the Philippines, its successors or assigns, the right and privilege of constructing, installing, establishing and operating in the Philippines, at such places as the said corporation may select and the Secretary of Public Works and Communications may approve, radio stations for the reception and transmission of wireless messages on radiotelegraphy and/or radiotelephone, including both coastal and marine telecommunications, each station to consist of two radio apparatus comprising of a receiving and sending radio apparatus. (Emphasis supplied). Section 4(a) of the same Act further provides that: Sec. 4(a). This franchise shall not take effect nor shall any powers thereunder be exercised by the grantee until the Secretary of Public works and Communications shall have allotted to the grantee the frequencies and wave lengths to be used, and issued to the grantee a license for such case. (Emphasis supplied) Thus, in the words of R.A. No. 2036 itself, approval of the then Secretary of Public Works and Communications was a precondit ion before the petitioner could put up radio stations in areas where it desires to operate. It has been repeated time and again that where the statutory norm speaks unequivocally, there is nothing for the courts to do except to apply it. The law, leaving no doubt as to the scope of its operation, must be obeyed. (Gonzaga v. Court of Appeals, 51 SCRA 381). The records of the case do not show any grant of authority from the then Secretary of Public Works and Communications before the petitioner installed the questioned radio telephone services in San Jose, Mindoro in 1971. The same is true as regards the radio telephone services opened in Sorsogon, Sorsogon and Catarman, Samar in 1983. No certificate of public convenience and necessity appears to have been secured by the petitioner from the public respondent when such certificate,was required by the applicable public utility regulations (See executive Order No. 546, sec. 15, supra.; Philippine Long Distance Telephone Co. v. City of Davao, 15 SCRA 75; Olongapo Electric Light and Power Corp. v. National Power Corporation, et al., G.R. No. L-24912, promulgated April 9, 1987.) It was well within the powers of the public respondent to authorize the installation by the private respondent network of radio communications systems in Catarman, Samar and San Jose, Mindoro. Under the circumstances of this case, the mere fact that the petitioner possesses a franchise to put up and operate a radio communications system in certain areas is not an insuperable obstacle to the public respondent's issuing the proper certificate to an applicant desiring to extend the same services to those areas. The Constitution mandates that a franchise cannot be exclusive in nature nor can a franchise be granted except that it must be subject to amendment, alteration, or even repeal by the legislature when the common good so requires. (Art. XII, sec. 11 of the 1986 Constitution). There is an express provision in the petitioner's franchise which provides compliance with the above mandate R.A. 2036, sec. 15). In view of the foregoing, we find no reason to disturb the public respondent's findings of fact, and conclusions of law insofar as the private respondent was authorized to operate in Catarman, Samar and San Jose, Mindoro. As a rule, the Commission's findings of fact, if supported by substantial evidence, are conclusive upon this Court. We may modify or ignore them only when it clearly appears that there is no evidence to support reasonablysuch a conclusion. (Halili v. Daplas, 14 SCRA 14). The petitioner has not shown why the private respondent should be denied the authority to operate its services in Samar and Mindoro. It has not overcome the presumption that when the public respondent disturbed the petitioner's monopoly in certain areas, it was doing so pursuant to public interest and the common good. WHEREFORE, the challenged order of the public respondent dated August 22, 1984 is hereby AFFIRMED. The petition is dismissed for lack of merit. SO ORDERED. Fernan (Chairman), Paras, Padilla, Bidin and Cortes, JJ., concur. [G.R. Nos. 115008-09. July 24, 1996] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANIEL QUIJADA Y CIRCULADO, accused-appellant. DECISION
DAVIDE, JR., J.: Accused-appellant Daniel Quijada appeals from the decision of 30 September 1993 of Branch 1 of the Regional Trial Court (RTC) of Bohol convicting him of the two offenses separately charged in two informations, viz., murder under Article 248 of the Revised Penal Code and illegal possession of firearm in its aggravated form under P.D. No. 1866, and imposing upon him the penalty of reclusion perpetua for the first crime and an indeterminate penalty ranging from seventeen years, four months, and one day, as minimum, to twenty years and one day, as maximum, for the second crime .[1] The appeal was originally assigned to the Third Division of the Court but was later referred to the Court en banc in view of the problematical issue of whether to sustain the trial court's judgment in conformity with the doctrine laid down inPeople vs. Tacan,[2] People vs. Tiozon,[3] People vs. Caling,[4] People vs. Jumamoy,[5] People vs. Deunida,[6] People vs. Tiongco,[7] People vs. Fernandez,[8] and People vs. Somooc,[9] or to modify the judgment and convict the appellant only of illegal possession of firearm in its aggravated form pursuant to People vs. Barros ,[10] which this Court (Second Division) decided on 27 June 1995. The informations read as follows: CRIMINAL CASE NO. 8178 That on or about the 30th day of December, 1992, in the municipality of Dauis, province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill and without any justifiable motive, with treachery and abuse of superior strength, the accused being then armed with a .38 cal. revolver, while the victim was unarmed,
suddenly attacked the victim without giving the latter the opportunity to defend himself, and with evident premeditation, the accused having harbored a grudge against the victim a week prior to the incident of murder, did then and there willfully, unlawfully and feloniously attack, assault and shoot Diosdado Iroy y Nesnea with the use of the said firearm, hitting the latter on his head and causing serious injuries which resulted to his death; to the damage and prejudice of the heirs of the deceased. Acts committed contrary to the provision of Art. 248 of the Revised Penal Code, with aggravating circumstance of nighttime being purposely sought for or taken advantage of by the accused to facilitate the commission of the crime .[11] CRIMINAL CASE NO. 8179 That on or about the 30th day of December, 1992, in the municipality of Dauis, province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously keep, carry and have in his possession, custody and control a firearm (hand gun) with ammunition, without first obtaining the necessary permit or license to possess the said firearm from competent authorities which firearm was carried by the said accused outside of his residence and was used by him in committing the crime of Murder with Diosdado Iroy y Nesnea as the victim; to the damage and prejudice of the Republic of the Philippines. Acts committed contrary to the provisions of P.D. No. 1866 .[12] Having arisen from the same incident, the cases were consolidated, and joint hearings were had. The witnesses presented by the prosecution were SPO4 Felipe Nigparanon (Acting Chief of Police of Dauis, Bohol), SPO Gondalino Inte, Dr. Greg Julius Sodusta, Rosita Iroy, and Teodula Matalinis. The defense presented as witnesses Alfred Aranzado, Edwin Nistal, Julius Bonao, Saturnino Maglupay, and the appellant himself. The evidence for the prosecution is summarized by the Office of the Solicitor General in the Brief for the Appellee as follows: On 25 December 1992, a benefit dance was held at the Basketball Court of Barangay Tinago, Dauis, Bohol. On this occasion, a fist fight occurred between Diosdado Iroy and appellant Daniel Quijada as the l atter was constantly annoying and pestering the former's sister. Rosita Iroy (TSN, Crim. Cases 8178 & 8179, June 8, 1993, pp. 32-35; August 5, 1993, pp. 14-15). In the evening of 30 December 1992, another benefit dance/disco was held in the same place. This benefit dance was attended bv Rosita Iroy, Ariel Dano, Teodora Badayos, Ado Aranzado, Largo Iroy and Diosdado Iroy. While Rosita Iroy and others were enjoying themselves inside the dancing area, Diosdado Iroy, Eugene Nesnea and Largo Iroy, who were then sitting at the plaza (the area where they positioned themselves was duly lighted and was approximately four meters from the dancing hall), decided to just watch the activities in the dance hall directly from the plaza. After dancing, Rosita Iroy decided to leave and went outside the gate of the dance area. Subsequently, or around 11:30 of the same night, while facing the direction of Diosdado Iroy, Rosita lroy saw appellant surreptitiously approach her brother Diosdado Iroy from behind. Suddenly, appellant fired his revolver at Diosdado Iroy, hitting the latter at the back portion of the head. This caused Rosita Iroy to spontaneously shout that appellant shot her brother; while appellant, after shooting Diosdado Iroy, ran towards the cornfield. Diosdado Iroy was immediately rushed by Elmer Nigparanon and Largo Iroy to the hospital but the injury sustained was fatal. In the meantime, Rosita Iroy went home and relayed to her parents the unfortunate incident (TSN, Crim Case Nos. 8178 & 8179, June 8, 1993, pp. 9-22, inclusive of the preceding paragraphs). At around midnight, the incident was reported to then Acting Chief of Police Felipe Nigparanon by Mrs. Alejandra Iroy and her daughter Teodula Matalinis. The police officer made entries in the police blotter regarding the shooting and correspondingly, ordered his men to pick up the appellant. But they were unable to locate appellant on that occasion (TSN, Crim. Case Nos. 8178 & 8179, June 9, 1993, pp. 2-6). In the afternoon of 31 December 1992, appellant, together with his father Teogenes Quijada went to the police station at Dauis, Bohol. There and then, appellant was pinpointed by Elenito Nistal and Rosita Iroy as the person who shot Diosdado Iroy. These facts were entered in the police blotter as Entry No. 1151 (TSN, Crim. Case Nos. 8178 & 8179, ibid. p. 14, June 14, 1993, pp. 46).[13] The slug was embedded at the midbrain .[14] Diosdado Iroy died of Cardiorespiratory arrest, secondary to tonsillar herniation, secondary to massive intracranial hemorrhage, secondary to gunshot wound, 1 cm. left occipital area, transacting cerebellum up to midbrain.[15] The firearm used by the appellant in shooting Diosdado Iroy was not licensed. Per certifications issued on 26 April 1993, the appellant was not a duly licensed firearm holder as verified from a consolidated list of licensed firearm holders in the province[16] and was not authorized to carry a firearm outside his residence .[17] The appellant interposed the defense of alibi, which the trial court rejected because he was positively identified by prosecution witness Rosita Iroy. It summarized his testimony in this wise: Daniel Quijada y Circulado, the accused in the instant cases, declared that in the afternoon of December 30, 1992 he was in their house At 6:00 o'clock in the afternoon he went to Tagbilaran City together with Julius Bonao in a tricycle No. 250to solicit passengers. They transported passengers until 10:30 o'clock in the evening. They then proceeded to the Tagbilaran wharf waiting for the passenger boat Trans Asia Taiwan. Before the arrival of Trans Asia Taiwan they had a talk with Saturnino Maglopay. They were able to pick up two passengers for Graham Avenue near La Roca Hotel. They then returned to the Tagbilaran wharf for the arrival of MV Cebu City that docked at 12:10 past midnight. They had a talk with Saturnino Maglopay who was waiting for his aunties scheduled to arrive aboard MV Cebu City. They were not able to pick up passengers which, as a consequence, they went home. They had on their way home passengers for the Agora Public Market. They arrived at the house of Julian Bonao at Bil-isan, Panglao, Bohol at 3:00 o'clock in the morning of December 31, 1992 where he passed the night. He went home to Mariveles, Dauis, Bohol at 9:00 o'clock in the morning .[18] The trial court gave full faith and credit to the version of the prosecution and found the appellant guilty beyond reasonable doubt of the crimes charged and sentenced him accordingly. It appreciated the presence of the qualifying circumstance of treachery considering that the appellant shot the victim at the back of the head while the latter was watching the dance. The dispositive portion of the decision dated 30 September 1993 reads as follows: PREMISES CONSIDERED, in Criminal Case No. 8178, the court finds the accused Daniel Quijada guilty of the crime of murder punished under Article 248 of the Revised Penal Code and hereby sentences him to suffer an imprisonment ofReclusion Perpetua, with the accessories of the law and to pay the cost. In Criminal Case No. 8179, the Court finds the accused Daniel Quijada guilty of the crime of Qualified Illegal Possession of Firearm and Ammunition punished under Sec. 1 of R.A. No. 1866 as amended, and hereby sentences him to suffer an indeterminate sentence from Seventeen (17) years Four (4) months and One (1) day, as minimum, to Twenty (20) years and One (1) day, as maximum, with the accessories of the law and to pay the cost. The slug or bullet which was extracted from the brain at the back portion of the head of the victim Diosdado Iroy is hereby ordered forfeited in favor of the government. It appearing that the accused Daniel Quijada has undergone preventive imprisonment he is entitled to the full time he has undergone preventive imprisonment to be deducted from the term of sentence if he has executed a waiver otherwise he will only be entitled to 4/5 of the time he has undergone preventive imprisonment to be deducted from his term of sentence if he has not executed a waiver .[19]
On 29 October 1993, after discovering that it had inadvertently omitted in the decision an award of civil indemnity and other damages in Criminal Case No. 8178, the trial court issued an order directing the appellant to pay the parents of the victim the amount of P50,000.00 as indemnity for the death of their son and P10,000.00 for funeral expenses .[20] The order was to form an integral part of the decision. The decision was promulgated on 29 October 1993 .[21] The appellant forthwith interposed the present appeal, and in his Brief, he contends that the trial court erred I . . . IN CONVICTING ACCUSED-APPELLANT AND GIVING CREDENCE TO THE TESTIMONY OF PROSECUTION WITNESSES ROSITA IROY AND FELIPE NIGPARANON. II . . . IN NOT CONSIDERING THE TESTIMONIES OF DEFENSE WITNESSES EDWIN NI STAL AND ALFRED ARANZADO, AND IN DISREGARDING THE PICTORIAL EXHIBITS OF THE ACCUSED-APPELLANT PARTICULARLY THE RELATIVE POSITIONS OF DIOSDADO IROY, ROSITA IROY, EDWIN NISTAL, AND ALFRED ARANZADO. III . . . IN FAILING TO CONSIDER THAT PROSECUTION WITNESSES ROSITA IROY AND SP04 FELIPE NIGPARANON HAD MOTIVES IN FALSELY TESTIFYING AGAINST ACCUSED-APPELLANT.[22] The appellant then submits that the issue in this case boils down to the identity of the killer of Diosdado Iroy. To support his stand that the killer was not identified, he attacks the credibility of prosecution witnesses Rosita Iroy and SP04 Felipe Nigparanon. He claims that the former had a motive "to put him in a bad light" and calls our attention to her direct testimony that her brother Diosdado, the victim, boxed him on the night of 25 December 1992 because he allegedly "bothered her." He f urther asserts that Rosita could not have seen the person who shot Diosdado considering their respective positions, particularly Rosita who, according to defense witnesses Nistal and Aranzado, was still inside the dancing area and ran towards the crime scene only after Diosdado was shot. And, the appellant considers it as suppression of evidence when the prosecution did not present as witnesses Diosdado's companions who were allegedly seated with Diosdado when he was shot. As to SPO4 Nigparanon, the appellant intimates improper motives in that the said witness is a neighbor of the Iroys, and when he testified, a case for arbitrary detention had already been file d against him by the appellant. The appellant further claims of alleged omissions and unexplained entries in the police blotter. Finally, the appellant wants us to favorably consider his defense of alibi which, according to him, gained strength because of the lack of evidence on the identity of the killer. Furthermore, he stresses that his conduct in voluntarily going to the police station after having been informed that he, among many others, was summoned by the police is hardly the actuation of the perpetrator of the killing of Diosdado Iroy -- specially so if Rosita Iroy's claim is to be believed that moments after the shooting she shouted that Daniel Quijada shot Diosdado Iroy. In its Appellee's Brief, the People refutes every argument raised by the appellant and recommends that we affirm in toto the challenged decision. After a careful scrutiny of the records and evaluation of the evidence adduced by the parties, we find this appeal to be absolutely without merit. The imputation of ill-motive on the part of Rosita Iroy and the basis therefor hardly persuade. The appellant was the one who was boxed by and lost to Diosdado Iroy in their fight on the night of 25 December 1992. It is then logical and consistent with human experience that it would be the appellant who would have forthwith entertained a grudge, if not hatred, against Diosdado. No convincing evidence was shown that Rosita had any reason to falsely implicate the appellant in the death of her brother Diosdado. The claim that Rosita could not have seen who shot her brother Diosdado because, as testified to by defense witnesses Nistal and Aranzado, she was inside the dancing hall and rushed to her brother only after the latter was shot is equally baseless. The following testimony of Rosita shows beyond cavil that she saw the assailant: Q You said that you were initially dancing inside the dancing place and you went out, about what time did you get out? A 11:00 o'clock. Q And you were standing about two (2) meters from Diosdado Iroy until 11:30 when the incident happened? A Yes, I was standing. Q And where did you face, you were facing Diosdado Iroy or the dancing area? A I was intending to go near my brother. I was approaching and getting near going to my brother Diosdado Iroy and while in the process I saw Daniel Quijada shot my brother Diosdado Iroy .[23] xxx xxx xxx Q And in your estimate, how far was your brother Diosdado Iroy while he was sitting at the plaza to the dancing place? A More or less four (4) meters distance. COURT: From the dancing hall? A Yes, your honor. Q And in your observation, was the place where Diosdado Iroy was sitting lighted or illuminated? A Yes, sir. Q What kind of light illuminated the place? A I do not know what kind of light but it was lighted. Q Was it an electric light? A It is electric light coming from a bulb. Q Where is that electric bulb that illuminated the place located? A It was placed at the gate of the dancing place and the light from the house. Q You said gate of the dancing place, you mean the dancing place was enclosed at that time and there was a gate, an opening? A Yes, sir. Q What material was used to enclose the dancing place? A Bamboo. Q And how far was the bulb which was placed near the entrance of the dancing place to the place where Diosdado Iroy was sitting? A Five (5) meters. Q You mentioned also that there was a light coming from the house, now whose house was that? A The house of spouses Fe and Berto, I do not know the family name. Q Was the light coming from the house of spouses Fe and Berto an electric light? A Yes sir. Q And in your estimate, how far was the source of light of the house of Fe and Berto to the place where Diosdado Iroy was sitting?
A About six (6) meters distance .[24] xxx xxx xxx Q What was the color of the electric bulb in the gate of the dancing place? A The white bulb.[25] The trial court disbelieved the testimony of Nistal and Aranzado. It explicitly declared: The factual findings of the Court in the instant case is anchored principally in ". . . observing the attitude and deportment of witnesses while listening to them speak (People vs. Magaluna, 205, SCRA 266). thereby indicating that on the basis of the witnesses' deportment and manner of testifying, the declarations of Nistal and Aranzado failed to convince the trial court that they were telling the truth. Settled is the rule that the factual findings of the trial court, especially on the credibility of witnesses, are accorded great weight and respect. For, the trial court has the advantage of observing the witnesses through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply;[26] or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien.[27] The appellant has miserably failed to convince us that we must depart from this rule. Neither are we persuaded by the claimed suppression of evidence occasioned by the non-presentation as prosecution witnesses any of the companions of Diosdado who were seated with him when he was shot. In the first place, the said companions could not have seen from their back the person who suddenly shot Diosdado. In the second place, the testimony of the companions would, at the most, only corroborate that of Rosita Iroy. Besides, there is no suggestion at all that the said companions were not available to the appellant. It is settled that the presumption in Section 3 (e), Rule 131 of the Rules of Court that evidence willfully suppressed would be adverse if produced does not apply when the testimony of the witness is merely corroborative or where the witness is available to the accused.[28] The alleged improper motive on the part of SP04 Nigparanon simply because he is a neighbor of the Iroy; remains purely speculative, as no evidence was offered to establish that such a relationship affected SP04 Nigparanon's objectivity. As a police officer, he enjoyed in his favor the presumption of regularity in the performance of his official duty .[29] As to the alleged omissions and unexplained entries in the police blotter, the same were sufficiently clarified by SP04 Nigparanon. The defense of alibi interposed by the appellant deserves scant consideration. He was positively identified by a credible witness. It is a fundamental judicial dictum that the defense of alibi cannot prevail over the positive identification of the accused.[30] Besides, for that defense to prosper it is not enough to prove that the accused was somewhere else when the crime was committed; he must also demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission.[31] As testified to by defense witness Julian Bonao, the Tagbilaran wharf, where the appellant said he was, is only about eight to nine kilometers away from the crime scene and it would take only about thirty minutes to traverse the distance with the use of a tricycle.[32] It was, therefore, not physically impossible for the appellant to have been at the scene of the crime at the time of its commission. Finally, the appellant asserts that if he were the killer of Diosdado Iroy, he would not have voluntarily proceeded to the police station. This argument is plain sophistry. The law does not find unusual the voluntary surrender of offenders; it even considers such act as a mitigating circumstance.[33] Moreover, non-flight is not conclusive proof of i nnocence.[34] The evidence for the prosecution further established with moral certainty that the appellant had no license to possess or carry a firearm. The firearm then that he used in shooting Diosdado Iroy was unlicensed. He, therefore, committed the crime of aggravated illegal possession of firearm under the second paragraph of Section 1 of P.D. No. 1866, which reads: SEC. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms, Ammunition or Instruments Used or Intended to b e Used in the Manufacture of Firearms or Ammunition -- The penalty of reclusion temporal in its maximum period to reclusion perpetuashall 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. If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed. In light of the doctrine enunciated in People vs. Tac-an,[35] and reiterated in People vs. Tiozon,[36] People vs. Caling,[37] People vs. Jumamoy,[38] People vs. Deunida,[39] People vs. Tiongco,[40] People v s. Fernandez,[41] and People vs.Somooc,[42] that one who kills another with the use of an unlicensed firearm commits two separate offenses of (1) either homicide or murder under the Revised Penal Code, and (2) aggravated illegal possession of firearm under the second paragraph of Section 1 of P.D. No. 1866, we sustain the decision of the trial court finding the appellant guilty of two separate offenses of murder in Criminal Case No. 8178 and of aggravated illegal possession of firearm in Criminal Case No. 8179. Although Tac-an and Tiozon relate more to the issue of whether there is a violation of the constitutional proscription against double jeopardy if an accused is prosecuted for homicide or murder and for aggravated illegal possession of firearm, they at the same time laid down the rule that these are separate offenses, with the first punished under the Revised Penal Code and the second under a special law; hence, the constitutional bar against double jeopardy will not apply. We observed in Tac-an: It is elementary that the constitutional right against double jeopardy protects one against a second or later prosecution for the same offense, and that when the subsequent information charges another and different offense, although arising from the same act or set of acts, there is no prohibited double jeopardy. In the case at bar, it appears to us quite clear that the offense charged in Criminal Case No. 4007 is that of unlawful possession of an unlicensed firearm penalized under a special statute, while the offense charged in Criminal Case No. 4012 was that of murder punished under the Revised Penal Code. It would appear self-evident that these two (2) offenses in themselves are quite different one from the other, such that in principle, the subsequent filing of Criminal Case No. 4012 is not to be regarded as having placed appellant in a prohibited second jeopardy. And we stressed that the use of the unlicensed firearm cannot serve to increase the penalty for homicide or murder; however, the killing of a person with the use of an unlicensed firearm, by express provision of P.D. No. 1866, shall increase the penalty for illegal possession of firearm. In Tiozon, we stated: It may be loosely said that homicide or murder qualifies the offense penalized in said Section 1 because it is a circumstance which increases the penalty. It does not, however, follow that the homicide or murder is absorbed in the offense; otherwise, an anomalous absurdity results whereby a more serious crime defined and penalized in the Revised Penal Code is absorbed by a statutory offense, which is just a malum prohibitum. The rationale for the qualification, as implied from the exordium of the decree, is to effectively deter violations of the laws on firearms and to stop the "upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed and manufactured firearms, x x x." In fine then, the killing of a person with the use of an unlicensed firearm may give rise to separate prosecutions for (a) violation of Section 1 of P.D. No. 1866 and (b) violation of either Article 248 (Murder) or Article 249 (Homicide) of the Revised Penal Code. The accused cannot plead one as a bar to the other; or, stated otherwise, the rule against double jeopardy cannot be invoked because the first is punished by a special law while the second, homicide or murder, is punished by the Revised Penal Code.
In People vs. Doriguez, [24 SCRA 163, 171], We held: It is a cardinal rule that the protection against double jeopardy may be invoked only for the same offense or identical offenses. A simple act may offend against two (or more) entirely distinct and unrelated provisions of law, and if one provision requires proof of an additional fact or element which the other does not, an acquittal or conviction or a dismissal of the information under one does not bar prosecution under the other. Phrased elsewise, where two different laws (or articles of the same code) defines two crimes, prior jeopardy as to one of them is not obstacle to a prosecution of the other, although both offenses arise from the same fact, if each crime involves some important act which is not an essential element of the other. In People vs. Bacolod [89 Phil. 621], from the act of firing a shot from a sub-machine gun which caused public panic among the people present and physical injuries to one, informations of physical injuries through reckless imprudence and for serious public disturbance were filed. Accused pleaded guilty and was convicted in the first and he sought to dismiss the second on the ground of double jeopardy. We ruled: The protection against double jeopardy is only for the same offe nse. A simple act may be an offense against two different provisions of law and if one provision requires proof of an additional fact which the other does not, an acquittal or conviction under one does not bar prosecution under the other. Since the informations were for separate offense[s] -- the first against a person and the second against public peace and order -one cannot be pleaded as a bar to the other under the rule on double jeopardy. In Caling, we explicitly opined that a person charged with aggravated illegal possession of firearm under the second paragraph of Section 1 of P.D. No. 1866 can also be separately charged with and convicted of homicide or murder under the Revised Penal Code and punished accordingly. Thus: It seems that the Court a quo did indeed err in believing that there is such a thing as "the special complex crime of Illegal Possession of Unlicensed Firearm Used in Homicide as provided for and defined under the 2nd paragraph of Sec. 1 of P.D. 1866 as amended," and declaring Caling guilty thereof. The legal provision invoked, "Sec. 1 of P.D. 1866, as amended," reads as follows: "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 reclusion temporal in its maximum period to reclusionperpetua 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. If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed." What is penalized in the first paragraph, insofar as material to the present case is the sole, simple act of a person who shall, among others, "unlawfully possess any firearm x x x (or) ammunition x x x." Obviously, possession of any firearm is unlawful if the necessary permit and/or license therefor is not first obtained. To that act is attached the penalty of reclusion temporal, maximum, to reclusion perpetua. Now, if "with the use of (such) an unlicensed firearm, a "homicide or murder is committed," the crime is aggravated and is more heavily punished, with the capital punishment. The gravamen of the offense in its simplest form is, basically, the fact of possession of a firearm without license. The crime may be denominated simple illegal possession, to distinguish it from its aggravated form. It is Aggravated if the unlicensed firearm is use d in thecommission of a homicide or murder under the Revised Penal Code. But the homicide or murder is not absorbed in the c rime of possession of an unlicensed firearm; neither is the latter absorbed in the former. There are two distinct crimes that are her e spoken of. One is unlawfulpossession of a firearm, which may be either simple or aggravated, defined and punished respectiv ely by the first and second paragraphs of Section 1 of PD 1866. The other is homicide or murder, committed with the use of an un licensed firearm. The mere possession of afirearm without legal authority consummates the crime under P.D. 1866, and the liabilit y for illegal possession is made heavier by the firearm's use in a killing. The killing, whether homicide or murder, is obviously distinct from the act of possession, and is separately punishedand defined under the Revised Penal Code. (emphasis supplied) In Jumamoy, we reiterated Caling and amplified the rationale on why an accused who kills another with an unlicensed firearm can be prosecuted and punished for the two separate offenses of violation of the second paragraph of Section 1 of P.D. No. 1866 and for homicide or murder under the Revised Penal Code. Thus: Coming to the charge of illegal possession of firearms, Section 1 of P.D. No. 1866 penalizes, inter alia, the unlawful possession of firearms or ammunition with reclusion temporal in its maximum period to reclusion perpetua. However, under the second paragraph thereof, the penalty is increased to death if homicide or murder is committed with the use of an unlicensed firearm. It may thus be loosely said that homicide or murder qualifies the offense because both are circumstances which increas e the penalty. It does not, however, follow that thehomicide or murder is absorbed in the offense. If these were to be so, an ano malous absurdity would result whereby a more serious crime defined and penalized under the Revised Penal Code will be absor bed by a statutory offense, one which is merely malum prohibitum. Hence, the killing of a person with the use of an unlicensed fir earm may give rise to separate prosecutions for (a) the violation of Section 1 of P.D. No. 1866 and (b) the violation of either Articl e 248 (Murder) or Article 249 (Homicide) of the Revised Penal Code. The accused cannot plead one to bar the other; stated otherwise, the rule against double jeopardy cannot be invoked as the first is punished by a special law while the second - Murder or Homicide - is punished by the Revised Penal Code. [citing People vs. Tiozon, 198 SCRA 368, 379 (1991); People vs. Doriguez, 24 SCRA 163 (1968)]. Considering, however, that the imposition of the death penalty is prohibited by the Constitution, the proper imposable penalty would be the penalty next lower in degree, or reclusion perpetua. (emphasis supplied) In Deunida, in discussing the propriety of the Government's action in withdrawing an information for murder and pursuing only the information for "Qualified Illegal Possession of Fi rearm," this Court categorically declared: At the outset, it must be stressed that, contrary to the prosecution's legal position in withdrawing the information for murder, the offense defined in the second paragraph of Section 1 of P.D. No. 1866 does not absorb the crime of homicide or murder under the Revised Penal Code and, therefore, does not bar the simultaneous or subsequent prosecution of the latter crime. The 1982 decision in Lazaro vs. People, involving the violation of P.D. No. 9, which the investigating prosecutor invokes to justify the withdrawal, is no longer controlling in view of our decisions in People vs. Tac-an, People vs. Tiozon, and People vs. Caling. In Somooc, we once more ruled: The offense charged by the Information is clear enough from the terms of that document, although both the Information and the decision of the trial court used the term "Illegal Possession of Firearm with Homicide," a phrase which has sometimes been supposed to connote a "complex cr ime‖ as used in the Revised Penal Code. Such nomenclature is, however, as we have ruled in People vs. Caling, a misnomer since there is no complex crime of illegal possession of firearm with homicide. The gravamen of the offense penalized in P.D. No. 1866 is the fact of possession of a firearm without a license or authority for such possession. This offense is aggravated and the imposable penalty upgraded if the unlicensed firearm is shown to have been used in the commission of homicide or murder, offenses penalized under the Revised Penal Code. The killing of a human being, whether characterized as homicide or murder, is patently distinct from the act of possession of an unlicensed firearm and is separately punished under the provisions of the Revised Penal Code. The foregoing doctrine suffered a setback when in our decisi on of 27 June 1995 in People vs. Barros ,[43] we set aside that portion of the appealed decision convicting the appellant of the offense of murder and affirmed that portion convicting him of illegal possession of firearm in its aggravated form. We therein made the following statement:
[A]ppellant may not in the premises be convicted of two separate offenses [of illegal possession of firearm in its aggravated form and of murder], but only that of illegal possession of firearm in its aggravated form, in light of the legal principles and propositions set forth in the separate opinion of Mr. Justice Florenz D. Regalado, to which the Members of the Division, the ponente included, subscribe. The pertinent portions of the separate opinion of Mr. Justice Florenz D. Regalado referred to therein read as follows: This premise accordingly brings up the second query as to whether or not the crime should properly be the aggravated illegal possession of an unlicensed firearm through the use of which a homicide or murder is committed. It is submitted that an accused so situated should be liable only for the graver offense of aggravated illegal possession of the firearm punished by death under the second paragraph of Section 1, Presidential Decree No. 1866, and it is on this point that the writer dissents from the holding which would impose a separate penalty for the homicide in addition to that for the illegal possession of the firearm used to commit the former. If the possession of the unlicensed firearm is the only offense imputable to the accused, the Court has correctly held that to be the simple possession punished with reclusion temporal in its maximum period to reclusion perpetua in the first paragraph of Section 1. Where, complementarily, the unlicensed firearm is used to commit homicide or murder, then either of these felonies will convert the erstwhile simple illegal possession into the graver offense of aggravated illegal possession. In other words, the homicide or murder constitutes the essential element for integrating into existence the capital offense of the aggravated form of illegal possession of a firearm. Legally, therefore, it would be illogical and unjustifiable to use the very same offenses of homicide or murder as integral elements of and to create the said capital offense, and then treat the former all over again as independent offenses to be separately punished further, with penalties immediately following the death penalty to boot. The situation contemplated in the second query is, from the punitive standpoint, virtually of the nature of the so- called, ―special complex crimes," which should more appropriately be called composite crimes, punished in Article 294, Article 297 and Article 335. They are neither of the same legal basis as nor subject to the rules on complex crimes in Article 48, since they do not consist of a single act giving rise to two or more grave or less grave felonies nor do they involve an offense being a necessary means to commit another. However, just like the regular complex crimes and the present case of aggravated illegal possession of firearms, only a single penalty is imposed for each of such composite crimes although composed of two or more offenses. On the other hand, even if two felonies would otherwise have been covered by the conceptual definition of a complex crime under Article 48, but the Code imposes a single definite penalty therefor, it cannot also be punished as a complex crime, much less as separate offense, but with only the single penalty prescribed by law. Thus, even where a single act results in two less grave felonies of serious physical injuries and serious slander by deed, the offense will not be punished as a delito compuesto under Article 48 but as less serious physical injuries with ignominy under the second paragraph of Article 265. The serious slander by deed is integrated into and produces a graver offense, and the former is no longer separately punished. What is, therefore, sought to be stressed by such alternative illustration, as well as the discussion on complex and composite crimes, is that when an offense becomes a component of another, the resultant crime being correspondingly punished as thus aggravated by the integration of the other, the former is not to be further separately punished as the majority would want to do with the homicide involved in the case at bar. With the foregoing answers to the second question, the third inquiry is more of a question of classification for purposes of the other provisions of the Code. The theory in Tac-an that the principal offense is the aggravated form of illegal possession of firearm and the killing shall merely be included in the particulars or, better still, as an element of the principal offense, may be conceded. After all, the plurality of crimes here is actually source from the very provisions of Presidential Decree No. 1866 which sought to "consolidate, codify and integrate" the various laws and presidential decrees to harmonize their provision" which ―must be updated and revised in order to more effectively deter violators‖ of said laws.
This would be akin to the legislative intendment underlying the provisions of the Anti-Carnapping Act of 1972, wherein the principal crime to be charged is still carnapping, although the penalty therefore is increased when the owner, driver or occupant of the carnapped vehicle is killed. The same situation, with escalating punitive provisions when attended by a killing, are found in the Anti-Piracy and Anti-Highway Robbery Law of 1974 and the Anti-Cattle Rustling Law of 1974, wherein the principal crimes still are piracy, highway robbery and cattle rustling. Also, in the matter of destructive arson, the principal offense when, inter alia, death results as a consequence of the commission of any of the acts punished under said article of the Code. In the present case, the academic value of specifying whether it is a case of illegal possession of firearm resulting in homicide or murder, or, conversely, homicide or murder through the illegal possession and use of an unlicensed firearm, would lie in the possible application of the provision on recidivism. Essentially, it would be in the theoretical realm since, taken either way, the penalty for aggravated illegal possession of a firearm is the single indivisible penalty of death, in which case the provision on recidivism would not apply. If, however, the illegal possession is not established but either homicide or murder is proved, then the matter of recidivism may have some significance in the sense that, for purposes thereof, the accused was convicted of a crime against persons and he becomes a recidivist upon conviction of another crime under the same title of the Code. Lastly, on the matter of the offense or offenses to be considered and the penalty to be imposed when the unlawful killing and the illegal possession are charged in separate informations, from what has been said the appropriate course of action would be to consolidate the cases and render a joint decision thereon, imposing a single penalty for aggravated illegal possession of firearm if such possession and the unlawful taking of life shall have been proved, or for only the proven offense which may be either simple illegal possession, homicide or murder perse. The same procedural rule and substantive disposition should be adopted if one information for each offense was drawn up and these informations were individually assigned to different courts or branches of the same court. Indeed, the practice of charging the offense of illegal possession separately from the homicide or murder could be susceptible of abuse since it entails undue concentration of prosecutorial powers and discretion. Prefatorily, the fact that the killing was committed with a firearm will necessarily be known to the police or prosecutorial agencies, the only probable problem being the determination and obtention of evidence t o show that the firearm is unlicensed. Now, if a separate information for homicide or murder is filed without alleging therein that the same was committed by means of an unlicensed firearm, the case would not fall under Presidential Decree No. 1866. Even if the use of a firearm is alleged therein, but without alleging the lack of a license therefor as where that fact has not yet been verified, the mere use of a firearm by itself, even if proved in that case, would not affect the accused either since i t is not an aggravating or qualifying circumstance. Conversely, if the information is only for illegal possession, with the prosecution intending to file thereafter the charge for homicide or murder but the same is inexplicably delayed or is not consolidated with the information for illegal possession, then any conviction that may result from the former would only be for simple illegal possession. If, on the other hand, the separate and subsequent prosecution for homicide or murder prospers, the objective of Pre sidential Decree No. 1866 cannot be achieved since the penalty imposable in that second prosecution will only be for the unlawful killing and further subject to such modifying circumstances as may be proved. In any event, the foregoing contingencies would run counter to the proposition that the real offense committed by the accused, and for which sole offense he should be punished, is the aggravated form of illegal possession of a firearm. Further, it is the writer's position that the possible problems projected herein may be minimized or obviated if both offenses involved are charged
in only one information or that the trial thereof, if separately charged, be invariably consolidated for joint decision. Conjointly, this is the course necessarily indicated since only a single composite crime is actually involved and it is palpable error to deal therewith and dispose thereof by segregated parts in piecemeal fashion. If we follow Barros, the conviction of the appellant for murder in Criminal Case No. 8178 must have to be set aside. He should only suffer the penalty for the aggravated illegal possession of firearm in Criminal Case No. 8179. The Court en banc finds in this appeal an opportunity to reexamine the existing conflicting doctrines applicable to prosecutions for murder or homicide and for aggravated illegal possession of firearm in instances where an unlicensed firearm is used in the killing of a person. After a lengthy deliberation thereon, the Court en banc arrived at the conclusion that the rule laid down in Tac-an, reiterated in Tiozon, Caling, Jumamoy, Deunida, Tiongco, Fernandez, and Somooc is the better rule, for it applies the laws concerned according to their letter and spirit, thereby steering this Court away from a dangerous course which could have irretrievably led it to an inexcusable breach of the doctrine of separation of powers through Judicial legislation. That rule upholds and enhances the lawmaker's intent or purpose in aggravating the crime of illegal possession of firearm when an unlicensed firearm is used in the commission of murder or homicide. Contrary to the view of our esteemed brother, Mr. Justice Florenz D. Regalado, in his Concurring and Dissenting Opinion in the case under consideration, Tac-an did not enunciate an ―unfort unate doctrine‖ or a "speciously camouflaged theory" which "constitutes an affront on doctrinal concepts of penal law and assails
even the ordinary notions of common sense." If Tac-an did in fact enunciate such an "unfortunate doctrine," which this Court has reiterated in a convincing number of cases and for a convincing number of years, so must the same verdict be made in our decision in People vs. De Gracia ,[44] which was promulgated on 6 July 1994. In the latter case, we held that unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate prosecutions for a violation of Section 1 of P.D. No. 1866 and also for a violation of Articles 134 and 135 of the Revised Penal Code on rebellion. A distinction between that situation and the case where an unlicensed firearm is used in homicide or murder would have no basis at all. In De Gracia, this Court, speaking through Mr. Justice Florenz D. Regalado, made the following authoritative pronouncements: III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to and until December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not appellant's possession of the firearms, explosives and ammunition seized and recovered from him was for the purpose and i n furtherance of rebellion. The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion pursuant to paragraph 2 of Article 135 of the Revised Penal Code which states that "any person merely participating or executing the command of others in a rebellion shall suffer the penalty of prision mayor in i ts minimum period." The court below held that appellant De Gracia, who had been servicing the personal needs of Col. Matillano (whose active armed opposition against the Government, particularly at the Camelot Hotel, was well known), is guilty of the act of guarding the explosives and "mol otov‖ bombs for and in behalf of the latter. We accept this finding of the lower court. The above provision of the law was, however, erroneously and i mproperly used by the court below as a basis in determining the degree of liability of appellant and the penalty to be imposed on him. It must be made clear that appellant is charged with the qualified offense ofillegal possession of firearms in furtherance of r ebellion under Presidential Decree No. 1866 which, in law, is distinct from the crime of rebellion punished under Article 134 and 13 5 of the Revised Penal Code. There are two separate statutes penalizing different offenses withdiscrete penalties. The Revised P enal Code treats rebellion as a crime apart from murder, homicide, arson, or other offenses, such as illegal possession of firearms, that might conceivably be committed in the course of a rebellion. Presidential Decree No. 1866 defines andpunishes, as a speci fic offense, the crime of illegal possession of firearms committed in the course or as part of a rebellion. As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree No. 1866, the Court has explain ed that said provision of the law will not be invalidated by the mere fact that the same act is penalized under two different statut es with differentpenalties, even if considered highly advantageous to the prosecution and onerous to the accused. It follows tha t, subject to the presence of requisite elements in each case, unlawful possession of an unlicensed firearm in furtherance of rebel lion may give rise to separateprosecutions for a violation of Section 1 of Presidential Decree No. 1866, and also a violation of Artic les 134 and 135 of the Revised Penal Code on rebellion. Double jeopardy in this case cannot be invoked because the first is an o ffense punished by a special law while thesecond is a felony punished by the Revised Penal Code with variant elements. We cannot justify what we did in De Gracia with a claim that the virtue of fidelity to a controlling doctrine, i.e., of Tac-an, had compelled us to do so. Indeed, if Tac-an enunciated an "unfortunate doctrine" which is "an affront on doctrinal concepts of penal law and assails even the ordinary notions of common sense," then De Gracia should have blazed the trail of a new enlightenment and forthwith set aside the "unfortunate doctrine" without any delay to camouflage a judicial faux pas or a doctrinal quirk. De Gracia provided an excellent vehicle for an honorable departure from Tac-an because no attack on the latter was necessary as the former merely involved other crimes to which the doctrine in Tac-an might only be applied by analogy. De Gracia did not even intimate the need to reexamine Tac-an; on the contrary, it adapted the latter to another category of illegal possession of firearm qualified by rebellion precisely because the same legal pri nciple and legislative purpose were involved, and not because De Gracia wanted to perpetuate an "unfortunate doctrine" or to embellish "the expanding framework of our criminal law from barnacled ideas which have not grown apace with conceptual changes over time," as the concurring and dissenting opinion charges. The majority now reiterates the doctrine in Tac-an and the subsequent cases not because it has become hostage to the "inertia of time [which] has always been the obstacle to the virtues of change," as the concurring and dissenting opinion finds it to be, but rather because it honestly believes that Tac-an laid down the correct doctrine. If P.D. No. 1866 as applied in Tac-an is an "affront on doctrinal concepts of penal laws and assails even the ordinary notions of common sense," the blame must not be laid at the doorsteps of this Court, but on the lawmaker's. All that the Court did in Tac-an was to apply the law, for there was nothing in that case that warranted an interpretation or the application of the niceties of legal hermeneutics. It did not forget that its duty is merely to apply the law in such a way that shall not usurp legislative powers by judicial legislation and that in the course of such application or construction it should not make or supervise legislation, or under the guise of interpretation modify, revise, amend, distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its terms .[45] Murder and homicide are defined and penalized by the Revised Penal Code [46] as crimes against persons. They are mala in se because malice or dolo is a necessary ingredient therefor .[47] On the other hand, the offense of illegal possession of firearm is defined and punished by a special penal law ,[48] P.D. No. 1866. It is a malum prohibitum[49] which the lawmaker, then President Ferdinand E. Marcos, in the exercise of his martial law powers, so condemned not only because of its nature but also because of the larger policy consideration of containing or reducing, if not eliminating, the upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed and manufactured firearms, ammunition, and explosives. If intent to commit the crime were required, enforcement of the decree and its policy or purpose would be difficult to achieve. Hence, there is conceded wisdom in punishing illegal possession of firearm without taking into account the criminal intent of the possessor. All that is needed is intent to perpetrate the act prohibited by law, coupled, of course, by animus possidendi. However, it must be clearly understood that this animus possidendi is without regard to any other criminal or felonious intent which an accused may have harbored in possessing the firearm .[50] A long discourse then on the concepts of malum in se and malum prohibilum and their distinctions is an exercise in futility.
We disagree for lack of basis the following statements of Mr. Justice Regalado in his Concurring and Dissenting Opinion, to wit: The second paragraph of the aforestated Section 1 expressly and unequivocally provides for such illegal possession and resultant killing as a single integrated offense which is punished as such. The majority not only created two offenses by dividing a single offense into two but, worse, it resorted to the unprecedented and invalid act of treating the original offense as a single integrated crime and then creating another offense by using a component crime which is also an element of the former. It would already have been a clear case of judicial legislation if the illegal possession with murder punished with a single penalty have been divided into two separate offenses of illegal possession and murder with distinct penalties. It is consequently a compounded infringement of legislative powers for this Court to now, as it has done, treat that single offense as specifically described by the law and impose reclusion perpetua therefor (since the death penalty for that offense is still proscribed), but then proceed further by plucking out therefrom the crime of murder in order to be able to impose the death sentence. For indeed, on this score, it is beyond cavil that in the aggravated form of illegal possession, the consequential murder (or homicide) is an integrated element or integral component since without the accompanying death, the crime would merely be simple illegal possession of a firearm under the first paragraph of Section 1. The second paragraph of Section 1 of P.D. No. 1866 does not warrant and support a conclusion that it intended to treat "illegal possession and resultant killing" (emphasis supplied) "as a single and integrated offense" of illegal possession with homicide or murder. It does not use the clause as a result or on the occasion of to evince an intention to create a single integrated crime. By its unequivocal and explicit language, which we quote to be clearly understood: If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed. (emphasis supplied) the crime of either homicide or murder is committed NOT AS A RESULT OR ON THE OCCASION of the violation of Section 1, but WITH THE USE of an unlicensed firearm, whose possession is penalized therein. There is a world of difference, which is too obvious, between (a) the commission of homicide or murder as a result or on the occasion of the violation of Section 1, and (b) the commission of homicide or murder with the use of an unlicensed firearm. In the first, homicide or murder is not the original purpose or primary objective of the offender, but a secondary event or circumstance either resulting from or perpetrated on the occasion of the commission of that originally or primarily intended. In the second, the killing, which requires a mens rea, is the primary purpose, and to carry that out effectively the offender uses an unlicensed firearm. As to the question then of Mr. Justice Regalado of whether this Court should also apply the rule enunciated here to P.D. No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974), P.D. No. 533 (Anti-Cattle Rustling Law of 1974), and P.D. No. 534 (Defining Illegal Fishing and Prescribing Stiffer Penalties Therefor), the answer is resoundingly in the negative. In those cases, the lawmaker clearly intended a single integrated offense or a special complex offense because the death therein occurs as a result or on the occasion of the commission of the offenses therein penalized or was not the primary purpose of the offender, unlike in the second paragraph of Section 1 of P.D. No. 1866. Thus, (a) Section 3 of P.D. No. 532 provides: SEC. 3. Penalties. -- Any person who commits piracy or highway robbery/brigandage as herein defined, shall, upon conviction by competent court be punished by: a. Piracy. - The penalty of reclusion temporal in its medium and maximum periods shall be imposed. If physical injuries or other crimes are committed as a result or on the occasion thereof, the penalty of reclusion perpetua shall be imposed. If rape, murder or homicide iscommitted as a result or on the occasion of piracy, or when the offenders abandoned the victims without means of saving themselves, or when the seizure is accomplished by firing upon or boarding a vessel, the mandatory penalty of death shall be imposed. b. Highway Robbery/Brigandage.-- The penalty of reclusion temporal in its minimum period shall be imposed. If physical injuries or other crimes are committed during or on the occasion of the commission of robbery or brigandage, the penalty of reclusion temporal in its medium and maximum periods shall be imposed. If kidnapping for ransom or extortion, or murder or homicide, or rape is committed as a result or on the occasion thereof, the penalty of death shall be imposed. (emphasis supplied) (b) Section 8 of P.D. No. 533 reads in part as follows: SEC. 8. Penal provisions. -- Any person convicted of cattle rustling as herein defined shall, irrespective of the value of the large cattle involved, be punished by prision mayor in its maximum period to reclusion temporal in its medium period if the offense is committed without violence against or intimidation of persons or force upon things. If the offense is committed with violence against or intimidation of persons or force upon things, the penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed. If a person isseriously injured or killed as a result or on the occasion of the commission of cattle rustling, the penalty of reclusion perpetua to death shall be im posed. (emphasis supplied) and (c) Section 3 of P.D. No. 534 reads as follows: SECTION. 3. Penalties.-- Violations of this Decree and the rules and regulations mentioned in paragraph (f) of Section 1 hereof shall be punished as follows: a. by imprisonment from 10 to 12 years, if explosives are used: Provided, that if the explosion results (1) in physical injury to person, the penalty shall be imprisonment from 12 to 20 years, or (2) in the loss of human life, then the penalty shall be imprisonment from 20 yearsto life, or death; b. by imprisonment from 8 to 10 years, if obnoxious or poisonous substances are used: Provided, that if the use of such substances results (1) in physical injury to any person, the penalty shall be imprisonment from 10 to 12 years, or (2) in the loss of human life, then thepenalty shall be imprisonment from 20 years to life, or death; x x x (emphasis supplied) The unequivocal intent of the second paragraph of Section 1 of P.D. No. 1866 is to respect and preserve homicide or murder as a distinct offense penalized under the Revised Penal Code and to increase the penalty for illegal possession of firearm where such a firearm is used in killing a person. Its clear language yields no intention of the lawmaker to repeal or modify, pro tanto, Articles 248 and 249 of the Revised Penal Code, in such a way that if an unlicensed firearm is used in the commission of homicide or murder, either of these crimes, as the case may be, would only serve to aggravate the offense of illegal possession of firearm and would not anymore be separately punished. Indeed, the words of the subject provision are palpably clear to exclude any suggestion that either of the crimes of homicide and murder, as crimes mala in se under the Revised Penal Code, is obliterated as such and reduced as a mere aggravating circumstance in illegal possession of firearm whenever the unlicensed firearm is used in killing a person. The only purpose of the provision is to increase the penalty prescribed in the first paragraph of Section 1 -- reclusion temporal in its maximum period to reclusion perpetua - to death, seemingly because of the accused's manifest arrogant defiance and contempt of the law in using an unlicensed weapon to kill another, but never, at the same time, to absolve the accused from any criminal liability for the death of the victim. Neither is the second paragraph of Section 1 meant to punish homicide or murder with death if either crime is committed with the use of an unlicensed firearm, i.e., to consider such use merely as a qualifying circumstance and not as an offense. That
could not have been the intention of the lawmaker because the term "penalty" in the subject provision is obviously meant to be the penalty for illegal possession of firearm and not the penalty for homicide or murder. We explicitly stated in Tac-an: There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in homicide or murder. Under an information charging homicide or murder, the fact that the death weapon was an unlicensed firearm cannot be used to increase the penalty for the second offense of homicide or murder to death .... The essential point is that the unlicensed character or condition of the instrument used in destroying human life or committing some other crime, is not included in the inventory of aggravating circumstances set out in Article 14 of the Revised Penal Code. A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying circumstance. This would not be without precedent. By analogy, we can cite Section 17 of B.P. Blg. 179, which amended the Dangerous Drugs Act of 1972 (R.A. No. 6425). The said section provides that when an offender commits a crime under a state of addiction, such a state shall be considered as a qualifying aggravating circumstance in the definition of the crime and the application of the pena lty under the Revised Penal Code. In short, there is nothing in P.D. No. 1866 that manifests, even vaguely, a legislative intent to decriminalize homicide or murder if either crime is committed with the use of an unlicensed firearm, or to convert the offense of illegal possession of firearm as a qualifying circumstance if the firearm so illegally possessed is used in the commission of homicide or murder. To charge the lawmaker with that intent is to impute an absurdity that would defeat the clear intent to preserve the law on homicide and murder and impose a higher penalty for illegal possession of firearm if such firearm is used in the commission of homicide or murder. Evidently, the majority did not, as charged in the concurring and dissenting opinion, create two offenses by dividing a single offense into two. Neither did it resort to the "unprecedented and invalid act of treating the original offense as a single integrated crime and then creating another offense by using a component crime which is also an element of the former." The majority has always maintained that the killing of a person with the use of an illegally possessed firearm gives rise to two separate offenses of (a) homicide or murder under the Revised Penal Code, and (b) illegal possession of firearm in its aggravated form. What then would be a clear case of judicial legislation is an interpretation of the second paragraph of Section 1 of P.D. No. 1866 that would make it define and punish a single integrated offense and give to the words WITH THE USE OF a si milar meaning as the words AS A RESULT OR ON THE OCCASION OF, a meaning which is neither born out by the letter of the law nor supported by its intent. Worth noting is the rule in statutory construction that if a statute is clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation ,[51] leaving the court no room for any extended ratiocination or rationalization of the law.[52] Peregrinations into the field of penology such as on the concept of a single integrated crime or composite crimes, or into the philosophical domain of integration of the essential elements of one crime to that of another would then be unnecessary in li ght of the clear language and indubitable purpose and intent of the second paragraph of Section 1 of P.D. No. 1866. The realm of penology, the determination of what should be criminalized, the definition of crimes, and the prescription of penalties are the exclusive prerogatives of the legislature. As its wisdom may dictate, the legislature may even create from a single act or transaction various offenses for different purposes subject only to the limitations set forth by the Constitution. This Court cannot dictate upon the legislature to respect the orthodox view concerning a single integrated crime or composite crimes. The only apparent obstacle to the imposition of cumulative penalties for various acts is the rule on double jeopardy. This brings us to the proposition in the dissenting opinion of Mr. Justice Regalado that the majority view offends the constitutional bar against double jeopardy under the "same-evidence" test enunciated in People vs. Diaz .[53] He then concludes: In the cases now before us, it is difficult to assume that the evidence for the murder in the first charge of aggravated illegal possession of firearm with murder would be different from the evidence to be adduced in the subsequent charge for murder alone. In the second charge, the illegal possession is not in issue, except peripherally and inconsequentially since it is not an element or modifying circumstance in the second charge, hence the evidence therefor is immaterial. But, in both prosecutions, the evidence on murder is essential, in the first charge because without it the crime is only simple illegal possession, and, in the second charge, because murder is the very subject of the prosecution. Assuming that all the other requirements under Section 7, Rule 117 are present, can it be doubted that double jeopardy is necessarily present and can be validly raised to bar the second prosecution for murder? In fact, we can extrapolate the constitutional and reglementary objection to the cases of the other composite crimes for which a single penalty is imposed, such as the complex, compound and so-called special complex crimes. Verily, I cannot conceive of how a person convicted of estafa through falsification under Article 48 can be validly prosecuted anew for the same offense or either estafa or falsification; or how the accused convicted of robbery with homicide under Article 294 can be legally charged again with either of the same component crimes of robbery or homicide; or how the convict who was found guilty of rape with homicide under Article 335 can be duly haled before the court again to face charges of either the same rape or homicide. Why, then, do we now sanction a second prosecution for murder in the cases at bar since the very same offense was an indispensable component for the other composite offense of illegal possession of firearm with murder? Why would the objection of non bis in idim as a bar to a second jeopardy lie in the preceding examples and not apply to the cases now before us? We are unable to agree to the proposition. For one, the issue of double jeopardy is not raised in this case. For another, the socalled "same-evidence" test is not a conclusive, much less exclusive, test in double jeopardy cases of the first category under the Double Jeopardy Clause which is covered by Section 21, Article III of the Constitution and which reads as follows: No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Note that the first category speaks of the same offense. The second refers to the same act. This was explicitly distinguished in Yap vs. Lutero,[54] from where People vs. Relova[55] quotes the following: Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of clause 20, Section 1, Article III of the Constitution, ordains that "no person shall be twice put in jeopardy of punishment for the same offense." (italics in the original) The second sentence of said clause provides that "if an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." Thus, the first sentence prohibits double jeopardy of punishment for the same offense whereas, the second contemplates double jeopardy of punishment for the same act. Under the first sentence, one may be twice put in jeopardy of punishment of the same act, provided that he is charged with different offenses, or the offense charged in one case is not included in, or does not include, the crime charged in the other case. The second sentence applies, even if the offenses charged are not the same, owing to the fact that one constitutes a violation of an ordinance and the other a violation of a statute. If the two charges are based on one and the same act, conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment for the same offense. So long as jeopardy has been attached under one of the informations charging said offense, the defense may be availed of in the other case involving the same offense, even if there has been neither conviction nor acquittal in either case. Elsewise stated, where the offenses charged are penalized either by different sections of the same statute or by different statutes, the important inquiry relates to the identity of offenses charged. The constitutional protection against double jeopardy
is available only where an identity is shown to exist between the earlier and the subsequent offenses charged .[56] The question of identity or lack of identity of offenses is addressed by examining the essential elements of each of the two offenses charged, as such elements are set out in the respective legislative definitions of the offenses involved.[57] It may be noted that to determine the ―same offense‖ under the Double Jeopardy Clause of the Fifth Amendment of the
Constitution of the United States of America which reads: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . . the rule applicable is the following: "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. "[58] The Double Jeopardy Clause of the Constitution of the United States of America was brought to the Philippines through the Philippine Bill of 1 July 1902, whose Section 5 provided, inter alia: [N]o person for the same offense shall be twice put in jeopardy of punishment . . . . This provision was carried over in identical words in Section 3 of the Jones Law of 29 August 1916 .[59] Then under the 1935 Constitution, the Jones Law provision was recast with the addition of a provision referring to the same act. Thus, paragraph 20, Section 1, Article III thereof provided as follows: No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. This was adopted verbatim in Section 22, Article IV of the 1973 Constitution and in Section 21, Article III of the present Constitution. This additional-element test in Lutero and Relova and in Blockburger, Gore, and Missouri would safely bring the second paragraph of Section 1 of P.D. No. 1866 out of the proscribed double jeopardy principle. For, undeniably, the elements of illegal possession of firearm in its aggravated form are different from the elements of homicide or murder, let alone the fact that these crimes are defined and penalized under different laws and the former is malum prohibitum, while both the latter are mala in se. Hence, the fear that the majority's construction of the subject provision would violate the constitutional bar against double jeopardy is unfounded. The penalty which the trial court imposed in Criminal Case No. 8179 for illegal possession of firearm in its aggravated form must, however, be modified. The penalty prescribed by P.D. No. 1866 is death. Since Section 19(1), Article III of the Constitution prohibits the imposition of the death penalty, the penalty next lower in degree, reclusion perpetual must be imposed. WHEREFORE, the instant appeal is DISMISSED, and the challenged decision of 30 September 1993 of Branch 1 of the Regional Trial Court of Bohol finding accused-appellant DANIEL QUIJADA y CIRCULADO guilty beyond reasonable doubt of the crime of murder in Criminal Case No. 8178 and of illegal possession of firearm in its aggravated form in Criminal Case No. 8179 is AFFIRMED. The penalty imposed in the first case, as amended by the Order of 29 October 1993, is sustained; however, the penalty imposed in the second case is changed to Reclusion Perpetua from the indeterminate penalty ranging from Seventeen (17) years, Four (4) months, and One (1) day, as minimum, to Twenty (20) years and One (1) day, as maximum. Costs de oficio. SO ORDERED. Padilla, Bellosillo, Melo, Francisco, Panganiban, and Torres, Jr., JJ., concur. Narvasa, C.J., Romero, Puno, Vitug, Kapunan, Mendoza, JJ., joined J. Regalado in his concurring and dissenting opinion. Regalado, J., see concurring and dissenting opinion. Hermosisima, J., see concurring opinion. G.R. No. 92163 June 5, 1990 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN PONCE ENRILE, petitioner vs. JUDGE JAIME SALAZAR (Presiding Judge of the Regional Trial Court of Quezon City [Br. 103], SENIOR STATE PROSECUTOR AURELIO TRAMPE, PROSECUTOR FERDINAND R. ABESAMIS, AND CITY ASSISTANT CITY PROSECUTOR EULOGIO MANANQUIL, NATIONAL BUREAU OF INVESTIGATION DIRECTOR ALFREDO LIM, BRIG. GEN. EDGAR DULA TORRES (Superintendent of the Northern Police District) A ND/ OR ANY AND ALL PERSONS WHO MAY HAVE ACTUAL CUSTODY OVER THE PERSON OF JUAN PONCE ENRILE, respondents. G.R. No. 92164 June 5, 1990 SPS. REBECCO E. PANLILIO AND ERLINDA E. PANLILIO, petitioners, vs. PROSECUTORS FERNANDO DE LEON, AURELIO C. TRAMPE, FFRDINAND R. ABESAMIS, AND EULOGIO C. MANANQUIL, and HON. JAIME W. SALAZAR, JR., in his capacity as Pr esiding Judge, Regional Trial Court, Quezon City, Branch 103, respondents.
NARVASA, J.: Thirty-four years after it wrote history into our criminal jurisprudence, People vs. Hernandez 1 once more takes center stage as the focus of a confrontation at law that would re-examine, if not the validity of its doctrine, the limits of its applicability. To be sure, the intervening period saw a number of similar cases 2 that took issue with the ruling-all with a marked lack of success-but none, it would Beem, where season and circumstance had more effectively conspired to attract wide public attention and excite impassioned debate, even among laymen; none, certainly, which has seen quite the kind and range of arguments that are now brought to bear on the same question. The facts are not in dispute. In the afternoon of February 27, 1990, Senate Minority Floor Leader Juan Ponce Enrile was arrested by law enforcement officers led by Director Alfredo Lim of the National Bureau of Investigation on the strength of a warrant issued by Hon. Jaime Salazar of the Regional Trial Court of Quezon City Branch 103, in Criminal Case No. 9010941. The warrant had issued on an information signed and earlier that day filed by a panel of prosecutors composed of Senior State Prosecutor Aurelio C. Trampe, State Prosecutor Ferdinand R. Abesamis and Assistant City Prosecutor Eulogio Mananquil, Jr., charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and Gregorio Honasan with the crime of rebellion with murder and multiple frustrated murder allegedly committed during the period of the failed coup attempt from November 29 to December 10, 1990. Senator Enrile was taken to and held overnight at the NBI headquarters on Taft Avenue, Manila, without bail, none having been recommended in the information and none fixed in the arrest warrant. The following morning, February 28, 1990, he was brought to Camp Tomas Karingal in Quezon City where he was given over to the custody of the Superintendent of the Northern Police District, Brig. Gen. Edgardo Dula Torres. 3 On the same date of February 28, 1990, Senator Enrile, through counsel, filed the petition for habeas corpusherein (which was followed by a supplemental petition filed on March 2, 1990), alleging that he was deprived of his constitutional rights in being, or having been: (a) held to answer for criminal offense which does not exist in the statute books; (b) charged with a criminal offense in an information for which no complaint was initially filed or preliminary investigation was conducted, hence was denied due process;
(c) denied his right to bail; and (d) arrested and detained on the strength of a warrant issued without the judge who issued it first having personally determined the existence of probable cause. 4 The Court issued the writ prayed for, returnable March 5, 1990 and set the plea for hearing on March 6, 1990. 5On March 5, 1990, the Solicitor General filed a consolidated return 6 for the respondents in this case and in G.R. No. 92164 7 Which had been contemporaneously but separately filed by two of Senator Enrile's co-accused, the spouses Rebecco and Erlinda Panlilio, and raised similar questions. Said return urged that the petitioners' case does not fall within the Hernandez ruling because-and this is putting it very simply-the information in Hernandez charged murders and other common crimes committed as a necessary means for the commission of rebellion, whereas the information against Sen. Enrile et al. charged murder and frustrated murder committed on the occasion, but not in furtherance, of rebellion. Stated otherwise, the Solicitor General would distinguish between the complex crime ("delito complejo") arising from an offense being a necessary means for committing another, which is referred to in the second clause of Article 48, Revised Penal Code, and is the subject of the Hernandez ruling, and the compound crime ("delito compuesto") arising from a single act constituting two or more grave or less grave offenses referred to in the first clause of the same paragraph, with which Hernandez was not concerned and to which, therefore, it should not apply. The parties were heard in oral argument, as scheduled, on March 6, 1990, after which the Court issued its Resolution of the s ame date 8 granting Senator Enrile and the Panlilio spouses provisional liberty conditioned upon their fi ling, within 24 hours from notice, cash or surety bonds of P100,000.00 (for Senator Enrile) and P200,000.00 (for the Panlilios), respectively. The Resolution stated that it was issued without prejudice to a more extended resolution on the matter of the provisional liberty of the petitioners and stressed that it was not passing upon the legal issues raised in both cases. Four Members of the Court 9 voted against granting bail to Senator Enrile, and two 10 against granting bail to the Panlilios. The Court now addresses those issues insofar as they are raised and litigated in Senator Enrile's petition, G.R. No. 92163. The parties' oral and written pleas presented the Court with the following options: (a) abandon Hernandez and adopt the minority view expressed in the main dissent of Justice Montemayor in said case that rebellion cannot absorb more serious crimes, and that under Article 48 of the Revised Penal Code rebellion may properly be complexed with common offenses, so-called; this option was suggested by the Solicitor General in oral argument although it is not offered in his written pleadings; (b) hold Hernandez applicable only to offenses committed in furtherance, or as a necessary means for the commission, of rebellion, but not to acts committed in the course of a rebellion which also constitute "common" crimes of grave or less grave character; (c) maintain Hernandez as applying to make rebellion absorb all other offenses committed in i ts course, whether or not necessary to its commission or in furtherance thereof. On the first option, eleven (11) Members of the Court voted against abandoning Hernandez. Two (2) Members felt that the doctrine should be re-examined. 10-A In the view of the majority, the ruling remains good law, its substantive and logical bases have withstood all subsequent challenges and no new ones are presented here persuasive enough to warrant a complete reversal. This view is reinforced by the fact that not too long ago, the incumbent President, exercising her powers under the 1986 Freedom Constitution, saw fit to repeal, among others, Presidential Decree No. 942 of the former regime which precisely sought to nullify or neutralize Hernandez by enacting a new provision (Art. 142-A) into the Revised Penal Code to the effect that "(w)hen by reason, or on the occasion, of any of the crimes penalized in this Chapter (Chapter I of Title 3, which includes rebellion), acts which constitute offenses upon which graver penalties are imposed by law are committed, the penalty for the most serious offense in its maximum period shall be imposed upon the offender."' 11 In thus acting, the President in effect by legislative flat reinstated Hernandezas binding doctrine with the effect of law. The Court can do no less than accord it the same recognition, absent any sufficiently powerful reason against so doing. On the second option, the Court unanimously voted to reject the theory that Hernandez is, or should be, limited in its application to offenses committed as a necessary means for the commission of rebellion and that the ruling should not be interpreted as prohibiting the complexing of rebellion with other common crimes committed on the occasion, but not in furtherance, thereof. While four Members of the Court felt that the proponents' arguments were not entirely devoid of merit, the consensus was that they were not sufficient to overcome what appears to be the real thrust of Hernandez to rule out the complexing of rebellion with any other offense committed in its course under either of the aforecited clauses of Article 48, as is made clear by the following excerpt from the majority opinion in that case: There is one other reason-and a fundamental one at that-why Article 48 of our Penal Code cannot be applied in the case at bar. If murder were not complexed with rebellion, and the two crimes were punished separately (assuming that this could be done), the following penalties would be imposable upon the movant, namely: (1) for the crime of rebellion, a fine not exceeding P20,000 and prision mayor, in the corresponding period, depending upon the modifying circumstances present, but never exceeding 12 years of prision mayor, and (2) for the crime of murder, reclusion temporal in its maximum period to death, depending upon the modifying circumstances present. in other words, in the absence of aggravating circumstances, the extreme penalty could not be imposed upon him. However, under Article 48 said penalty would have to be meted out to him, even in the absence of a single aggravating circumstance. Thus, said provision, if construed in conformity with the theory of the prosecution, would be unfavorable to the movant. Upon the other hand, said Article 48 was enacted for the purpose of favoring the culprit, not of sentencing him to a penalty more severe than that which would be proper if the several acts performed by him were punished separately. In the words of Rodriguez Navarro: La unificacion de penas en los casos de concurso de delitos a que hace referencia este articulo (75 del Codigo de 1932), esta basado francamente en el principio pro reo.' (II Doctrina Penal del Tribunal Supremo de Espana, p. 2168.) We are aware of the fact that this observation refers to Article 71 (later 75) of the Spanish Penal Code (the counterpart of our Article 48), as amended in 1908 and then in 1932, reading: Las disposiciones del articulo anterior no son aplicables en el caso de que un solo hecho constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario para cometer el otro. En estos casos solo se impondra la pena correspondiente al delito mas grave en su grado maximo, hasta el limite que represent s la suma de las que pudieran imponerse, penando separadamente los delitos. Cuando la pena asi computada exceda de este limite, se sancionaran los delitos por separado. (Rodriguez Navarro, Doctrina Penal del Tribunal Supremo, Vol. II, p. 2163) and that our Article 48 does not contain the qualification inserted in said amendment, restricting the imposition of the penalty for the graver offense in its maximum period to the case when it does not exceed the sum total of the penalties imposable if the acts charged were dealt with separately. The absence of said limitation in our Penal Code does not, to our mind, affect substantially the spirit of said Article 48. Indeed, if one act constitutes two or more offenses, there can be no reason to inflict a punishment graver than that prescribed for each one of said offenses put together. In directing that the penalty for the graver offense be, in such case, imposed in its maximum period, Article 48 could have had no other purpose than to prescribe a penalty lower than the aggregate of the penalties for each offense, if imposed separately. The reason for this benevolent spirit of article 48 is readily discernible. When two or more crimes are the result of a single act, the offender is deemed less perverse than
when he commits said crimes thru separate and distinct acts. Instead of sentencing him for each crime independently from the other, he must suffer the maximum of the penalty for the more serious one, on the assumption that it is less grave than the sum total of the separate penalties for each offense. 12 The rejection of both options shapes and determines the primary ruling of the Court, which is that Hernandezremains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion. This, however, does not write finis to the case. Petitioner's guilt or innocence is not here inquired into, much less adjudged. That is for the trial court to do at the proper time. The Court's ruling merely provides a take-off point for the disposition of other questions relevant to the petitioner's complaints about the denial of his rights and to the propriety of the recourse he has taken. The Court rules further (by a vote of 11 to 3) that the information filed against the petitioner does in fact charge an offense. Disregarding the objectionable phrasing that would complex rebellion with murder and multiple frustrated murder, that indictment is to be read as charging simple rebellion. Thus, in Hernandez, the Court said: In conclusion, we hold that, under the allegations of the amended information against defendant-appellant Amado V. Hernandez, the murders, arsons and robberies described therein are mere ingredients of the crime of rebellion allegedly committed by said defendants, as means "necessary" (4) for the perpetration of said offense of rebellion; that the crime charged in the aforementioned amended information is, therefore, simple rebellion, not the complex crime of rebellion with multiple murder, arsons and robberies; that the maximum penalty imposable under such charge cannot exceed twelve (12) years of prision mayor and a fine of P2H,HHH; and that, in conformity with the policy of this court in dealing with accused persons amenable to a similar punishment, said defendant may be allowed bail. 13 The plaint of petitioner's counsel that he is c harged with a crime that does not exist in the statute books, while technically correct so far as the Court has ruled that rebellion may not be complexed with other offense s committed on the occasion thereof, must therefore be dismissed as a mere flight of rhetoric. Read in the context of Hernandez, the information does indeed charge the petitioner with a crime defined and punished by the Revised Penal Code: simple rebellion. Was the petitioner charged without a complaint having been initially filed and/or preliminary investigation conducted? The record shows otherwise, that a complaint against petitioner for simple rebellion was filed by the Director of the National Bureau of Investigation, and that on the strength of said complaint a preliminary investigation was conducted by the respondent prosecutors, culminating in the filing of the questioned information. 14 There is nothing inherently irregular or contrary to law in filing against a respondent an indictment for an offense different from what is charged i n the initiatory complaint, if warranted by the evidence developed during the preliminary investigation. It is also contended that the respondent Judge issued the warrant for petitioner's arrest without first personallydetermining the existence of probable cause by examining under oath or affirmation the complainant and his witnesses, in violation of Art. III, sec. 2, of the Constitution. 15 This Court has already ruled, however, that it is not the unavoidable duty of the judge to make such a personal examination, it being sufficient that he follows established procedure by personally evaluating the report and the supporting documents submitted by the prosecutor. 16 Petitioner claims that the warrant of arrest issued barely one hour and twenty minutes after the case was raffled off to the respondent Judge, which hardly gave the latter sufficient time to personally go over the voluminous records of the preliminary investigation. 17 Merely because said respondent had what some might consider only a relatively brief period within which to comply with that duty, gives no reason to assume that he had not, or could not have, so complied; nor does that single circumstance suffice to overcome the legal presumption that official duty has been regularly performed. Petitioner finally claims that he was denied the right to bail. In the light of the Court's reaffirmation of Hernandezas applicable to petitioner's case, and of the logical and necessary corollary that the information against him should be considered as charging only the crime of simple rebelli on, which is bailable before conviction, that must now be accepted as a correct proposition. But the question remains: Given the facts from which this case arose, was a petition for habeas corpus in this Court the appropriate vehicle for asserting a right to bail or vindicating its denial? The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right to have provisional liberty pending trial and judgment. The original jurisdiction to grant or deny bail rested with said respondent. The correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of the evidence against him. Only after that remedy was denied by the tri al court should the review jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of Appeals if appropriate relief was also available there. Even acceptance of petitioner's premise that going by the Hernandez ruling, the information charges a non-existent crime or, contrarily, theorizing on the same basis that it charges more than one offense, would not excuse or justify his improper choice of remedies. Under either hypothesis, the obvious recourse would have been a motion to quash brought in the criminal action before the respondent Judge. 18 There thus seems to be no question that All the grounds upon which petitioner has founded the present petition, whether these went into the substance of what is charged in the information or imputed error or omission on the part of the prosecuting panel or of the respondent Judge in dealing with the charges against him, were originally justiciable in the criminal case before said Judge and should have been brought up there instead of directly to this Court. There was and is no reason to assume that the resolution of any of these questions was beyond the ability or competence of the respondent Judge-indeed such an assumption would be demeaning and less than fair to our trial courts; none whatever to hold them to be of such complexity or transcendental importance as to disqualify every court, except this Court , from deciding them; none, in short that would justify by passing established judicial processes designed to orderly move litigation through the hierarchy of our courts. Parenthentically, this is the reason behind the vote of four Members of the Court aga inst the grant of bail to petitioner: the view that the trial court should not thus be precipitately ousted of its original jurisdiction to grant or deny bail, and if it erred in that matter, denied an opportunity to correct its error. It makes no difference that the respondent Judge here issued a warrant of arrest fixing no bail. Immemorial practice sanctions simply following the prosecutor's recommendation regarding bail, though it may be perceived as the better course for the judge motu proprio to set a bail hearing where a capital offense is charged. 19 It is, in any event, incumbent on the accused as to whom no bail has been recommended or fixed to claim the right to a bail hearing and thereby put to proof the strength or weakness of the evidence against him. It is apropos to point out that the present petition has triggered a rush to this Court of other parties in a similar situation, all apparently taking their cue from it, distrustful or contemptuous of the efficacy of seeking recourse in the regular manner just outlined. The proliferation of such pleas has only contributed to the delay that the petitioner may have hoped to avoid by coming directly to this Court. Not only because popular interest seems focused on the outcome of the present petition, but also because to wash the Court's hand off it on jurisdictional grounds would only compound the delay that it has already gone through, the Court now decides the same on the merits. But in so doing, the Court cannot express too strongly the view that said petition interdicted the ordered and orderly progression of proceedings that should have started with the trial court and reached this Court only if the relief appealed for was denied by the former and, in a proper case, by the Court of Appeals on review.
Let it be made very clear that hereafter the Court will no longer countenance, but will give short shrift to, pleas like the present, that clearly short-circuit the judicial process and burden it with the resolution of issues properly within the original competence of the lower courts. What has thus far been stated is equally applicable to and decisive of the petition of the Panlilio spouses (G.R. No. 92164) which is virtually Identical to that of petitioner Enrile in factual milieu and is therefore determinable on the same principles already set forth. Said spouses have uncontestedly pleaded 20 that warrants of arrest issued against them as coaccused of petitioner Enrile in Criminal Case No. 90-10941, that when they appeared before NBI Director Alfredo Lim in the afternoon of March 1, 1990, they were taken into custody and detained without bail on the strength of said warrants in violationthey claim-of their constitutional rights. It may be that in the light of contemporary events, the act of rebellion has lost that quitessentiany quixotic quality that justifies the relative leniency with which it is regarded and punished by law, that present-day rebels are less impelled by love of country than by lust for power and have become no better than mere terrorists to whom nothing, not even the sanctity of human life, is allowed to stand in the way of their ambitions. Nothing so underscores this aberration as the rash of seemingly senseless killings, bombings, kidnappings and assorted mayhem so much in the news these days, as often perpetrated against innocent civilians as against the military, but by and large attributable to, or e ven claimed by so-called rebels to be part of, an ongoing rebellion. It is enough to give anyone pause-and the Court is no exception-that not even the crowded streets of our capital City seem safe from such unsettling violence that is disruptive of the public peace and stymies every effort at national economic recovery. There is an apparent need to restructure the law on rebellion, either to raise the penalty therefor or to clearly define and delimit the other offenses to be considered as absorbed thereby, so that it c annot be conveniently utilized as the umbrella for every sort of illegal activity undertaken in its name. The Court has no power to effect such change, for it can only interpret the law as it stands at any given time, and what is needed lies beyond interpretation. Hopefully, Congress will perceive the need for promptly seizing the initiative in this matter, which is properly within its province. WHEREFORE, the Court reiterates that based on the doctrine enunciated in People vs. Hernandez, the questioned information filed against petitioners Juan Ponce Enrile and the spouses Rebecco and Erlinda Panlilio must be read as charging simple rebellion only, hence said petitioners are entitled to bail, before final conviction, as a matter of right. The Court's earlier grant of bail to petitioners being merely provisional in character, the proceedings in both cases are ordered REMANDED to the respondent Judge to fix the amount of bail to be posted by the petitioners. Once bail is fixed by said respondent for any of the petitioners, the corresponding bail bond flied with this Court shall become functus oficio. No pronouncement as to costs. SO ORDERED. Cruz, Gancayco and Regalado, JJ., concur. Medialdea, J., concurs in G.R. No. 92164 but took no part in G.R. No. 92163. Cortes and Griño-Aquino, JJ., are on leave. Separate Opinions MELENCIO-HERRERA, J., concurring: I join my colleagues in holding that the Hernandez doctrine, which has been with us for the past three decades, remains good law and, thus, should remain undisturbed, despite periodic challenges to it that, ironically, have only served to strengthen its pronouncements. I take exception to the view, however, that habeas corpus was not the proper remedy. Had the Information filed below charged merely the simple crime of Rebellion, that proposition could have been plausible. But that Information charged Rebellion complexed with Murder and Multiple Frustrated Murder, a crime which does not exist in our statute books. The charge was obviously intended to make the penalty for the most serious offense in its maximum period imposable upon the offender pursuant to Article 48 of the Revised Penal Code. Thus, no bail was recommended in the Information nor was any prescribed in the Warrant of Arrest issued by the Trial Court. Under the attendant circumstances, therefore, to have filed a Motion to Quash before the lower Court would not have brought about the speedy relief from unlawful restraint that petitioner was seeking. During the pendency of said Motion before the lower Court, petitioner could have continued to languish in detention. Besides, the Writ ofHabeas Corpus may still issue even if another remedy, which is less effective, may be availed of (Chavez vs. Court of Appeals, 24 SCRA 663). It is true that habeas corpus would ordinarily not he when a person is under custody by virtue of a process issued by a Court. The Court, however, must have jurisdiction to issue the process. In this case, the Court below must be deemed to have been ousted of jurisdiction when it illegally curtailed petitioner's liberty. Habeas corpus is thus available. The writ of habeas corpus is available to relieve persons from unlawful restraint. But where the detention or confinement is the result of a process issued by the court or judge or by virtue of a judgment or sentence, the writ ordinarily cannot be availed of. It may still be invoked though if the process, judgment or sentence proceeded from a court or tribunal the jurisdiction of which may be assailed. Even if it had authority to act at the outset, it is now the prevailing doctrine that a deprivation of constitutional right, if shown to exist, would oust it of jurisdiction. In such a case, habeas corpus could be relied upon to regain one's liberty (Celeste vs. People, 31 SCRA 391) [Emphasis emphasis]. The Petition for habeas corpus was precisely premised on the violation of petitioner's constitutional right to bail inasmuch as rebellion, under the present state of the law, is a bailable offense and the crime for which petitioner stands accused of and for which he was denied bail is non-existent in law. While litigants should, as a rule, ascend the steps of the judicial ladder, nothing should stop this Court from taking cognizance of petitions brought before it raising urgent constitutional issues, any procedural flaw notwithstanding. The rules on habeas corpus are to be liberally construed (Ganaway v. Quilen, 42 Phil. 805), the writ of habeas corpus being the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. The scope and flexibility of the writ-its capacity to reach all manner of illegal detention-its ability to cut through barriers of form and procedural mazeshave always been emphasized and jealously guarded by courts and lawmakers (Gumabon v. Director of Bureau of Prisons, 37 SCRA 420) [emphasis supplied]. The proliferation of cases in this Court, which followed in the wake of this Petition, was brought about by the insistence of the prosecution to charge the crime of Rebellion complexed with other common offenses notwithstanding the fact that this Court had not yet ruled on the validity of that charge and had granted provisional liberty to petitioner. If, indeed, it is desired to make the crime of Rebellion a capital offense (now punishable by reclusion perpetua), the remedy lies in legislation. But Article 142-A 1 of the Revised Penal Code, along with P.D. No. 942, were repealed, for being "repressive," by EO No. 187 on 5 June 1987. EO 187 further explicitly provided that Article 134 (and others enumerated) of the Revised Penal Code was "restored to its full force and effect as it existed before said amendatory decrees." Having been so repealed, this Court is bereft of power to legislate into existence, under the guise of re-examining a settled doctrine, a "creature unknown in law"- the complex crime of Rebellion with Murder. The remand of the case to the lower Court for further proceedings is in order. The Writ of Habeas Corpus has served its purpose.
GUTIERREZ, JR., J., concurring: I join the Court's decision to grant the petition. In reiterating the rule that under existing law rebelli on may not be complexed with murder, the Court emphasizes that it cannot legislate a new-c rime into existence nor prescribe a penalty for its commission. That function is exclusively for Congress. I write this separate opinion to make clear how I view certain issues arising from these cases, especially on how the defective informations filed by the prosecutors should have been treated. I agree with the ponente that a petition for habeas corpus is ordinarily not the proper procedure to assert the right to bail . Under the special circumstances of this case, however, the petitioners had no other recourse. They had to come to us. First, the trial court was certainly aware of the decision in People v. Hernandez, 99 Phil. 515 (1956) that there is no such crime in our statute books as rebellion complexed with murder, that murder committed in connection with a rebellion i s absorbed by the crime of rebellion, and that a resort to arms resulting in the destruction of life or property constitutes neither two or mor e offenses nor a complex crime but one crime-rebellion pure and simple. Second, Hernandez has been the law for 34 years. It has been reiterated in equally sensational cases. All lawyers and even law students are aware of the doctrine. Attempts to have the doctrine re -examined have been consistently rejected by this Court. Third, President Marcos through the use of his then legislative powers, issued Pres. Decree 942, thereby installing the new c rime of rebellion complexed with offenses like murder where graver penalties are imposed by law. However, President Aquino using her then legislative powers expressly repealed PD 942 by issuing Exec. Order 187. She thereby erased the crime of rebellion complexed with murder and made it clear that theHernandez doctrine remains the controlling rule. The prosecution has not explained why it insists on resurrecting an offense expressly wiped out by the President. The prosecution, in effect, questions the action of the President in repealing a repressive decree, a decree which, according to the repeal order, is violative of human rights. Fourth, any re-examination of the Hernandez doctrine brings the ex post facto principle into the picture. Decisions of this Court form part of our legal system. Even if we declare that rebellion may be complexed with murder, our declaration can not be made retroactive where the effect is to imprison a person for a crime which did not exist until the Supreme Court reversed itself. And fifth, the attempts to distinguish this case from the Hernandez case by stressing that the killings charged in the information were committed "on the occasion of, but not a necessary means for, the commission of rebellion" result in outlandish consequences and ignore the basic nature of rebellion. Thus, under the prosecution theory a bomb dropped on PTV-4 which kills government troopers results in simple rebellion because the act is a necessary means to make the rebellion succeed. However, if the same bomb also kills some civilians in the neighborhood, the dropping of the bomb becomes rebellion complexed with murder because the killing of civilians is not necessary for the success of a rebellion and, therefore, the killings are only "on the occasion of but not a 'necessary means for' the commission of rebellion. This argument is puerile. The crime of rebellion consists of many acts. The dropping of one bomb cannot be isolated as a separate crime of rebellion. Neither should the dropping of one hundred bombs or the firing of thousands of machine gun bullets be broken up into a hundred or thousands of separate offenses, if each bomb or each bullet happens to result in the destruction of life and property. The same act cannot be punishable by separate penalties depending on what strikes the fancy of prosecutors-punishment for the killing of soldiers or retribution for the deaths of civilians. The prosecution also loses sight of the regrettable fact that in total war and in rebellion the killing of civilians, the laying waste of civilian economies, the massacre of innocent people, the blowing up of passenger airplanes, and other acts of terrorism are all used by those engaged in rebellion. We cannot and should not try to ascertain the intent of rebels for each single act unless the act is plainly not connected to the rebellion. We cannot use Article 48 of the Revised Penal Code in lieu of still-to- be-enacted legislation. The killing of civilians during a rebel attack on military facilities furthers the rebellion and is part of the rebellion. The trial court was certainly aware of all the above considerations. I cannot understand why the trial Judge issued the warrant of arrest which categorically states therein that the accused was not entitled to bail. The petitioner was compelled to come to us so he would not be arrested without bail for a nonexistent crime. The trial court forgot to apply an established doctrine of the Supreme Court. Worse, it issued a warrant which reversed 34 years of established procedure based on a well-known Supreme Court ruling. All courts should remember that they for m part of an independent judicial system; they do not belong to the prosecution service. A court should never play into the hands of the prosecution and blindly comply with its erroneous manifestations. Faced with an information charging a manifestly non-existent crime, the duty of a trial court is to throw it out. Or, at the very least and where possible, make it conform to the law. A lower court cannot re-examine and reverse a decision of the Supreme Court especially a decision consistently followed for 34 years. Where a Judge disagrees with a Supreme Court ruling, he is free to express his reservations in the body of his decision, order, or resolution. However, any judgment he renders, any order he prescribes, and any processes he issues must follow the Supreme Court precedent. A trial court has no jurisdiction to reverse or ignore precedents of the Supreme Court. In this particular case, it should have been the Solicitor General coming to this Court to question the lower court's rejection of the application for a warrant of arrest without bail. It should have been the Solicitor-General provoking the issue of re-examination instead of the petitioners asking to be freed from their arrest for a non-existent crime. The principle bears repeating: Respondent Court of Appeals really was devoid of any choice at all. It could not have ruled in any other way on the legal question raised. This Tribunal having spoken, its duty was to obey. It is as simple as that. There is relevance to this excerpt from Barrera v. Barrera. (L-31589, July 31, 1970, 34 SCRA 98) 'The delicate task of ascertaining the significance that attaches to a constitutional or statutory provision, an executive order, a procedural norm or a municipal ordinance is committed to the judiciary. It thus discharges a role no less crucial than that appertaining to the other two departments in the maintenance of the rule of law. To assure stability in legal relations and avoid confusion, it has to speak with one voice. It does so with fina lity, logically and rightly, through the highest judicial organ, this Court. What it says then should be definitive and authoritative, binding on those occupying the lower ranks in the judicial hierarchy. They have to defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in People v. Vera, 65 Phil. 56 [1937] was cited). The ensuing paragraph of the opinion in Barrera further emphasizes the point: Such a thought was reiterated in an opinion of Justice J.B.L. Reyes and further emphasized in these words: 'Judge Gaudencio Cloribel need not be re minded that the Supreme Court, by tradition and in our system of judicial administration, has the last word on what the law is; it is the final arbiter of any justifiable controversy. There is only one Supreme Court from whose decisions all other courts should take their bearings. (Ibid. Justice J.B.L. Reyes spoke thus in Albert v. Court of First Instance of Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961. (Tugade v. Court of Appeals, 85 SCRA 226 [1978]. See also Albert v. Court of First Instance, 23 SCRA 948 [1968] and Vir-Jen Shipping and Marine Services, Inc. v. NLRC, 125 SCRA 577 [1983]) I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et al. even more inexplicable. In the case of the Panlilios, any probable cause to commit the non- existent crime of rebellion complexed with murder exists only in the minds of the prosecutors, not in the records of the c ase. I have gone over the records and pleadings furnished to the members of the Supreme Court. I listened intently to the oral arguments during the hearing and it was quite apparent that the constitutional requirement of probable cause was not satisfied.
In fact, in answer to my query for any other proofs to support the issuance of a warrant of arrest, the answer was that the evidence would be submitted in due time to the trial court. The spouses Panlilio and one parent have been in the restaurant business for decades. Under the records of these petitions, any restaurant owner or hotel manager who serves food to rebels is a co-conspirator in the rebellion. The absurdity of this proposition is apparent if we bear in mind that rebels ride in buses and jeepneys, eat meals in r ural houses when mealtime finds them in the vicinity, join weddings, fiestas, and other parties, play basketball with barrio youths, attend masses and church services and otherwise mix with people in various gatherings. Even if the hosts recognize them to be rebels and fail to shoo them away, it does not necessarily follow that the former are co-conspirators in a rebellion. The only basis for probable cause shown by the records of the Panlilio case is the alleged fact that the petitioners served food to rebels at the Enrile household and a hotel supervisor asked two or three of their waiters, without reason, to go on a vacation. Clearly, a much, much stronger showing of probable cause must be shown. In Salonga v. Cruz Paño, 134 SCRA 438 (1985), then Senator Salonga was charged as a conspirator in the heinous bombing of innocent civilians because the man who planted the bomb had, sometime earlier, appeared in a group photograph taken during a birthday party in the United States with the Senator and other guests. It was a case of conspiracy proved through a group picture. Here, it is a case of conspiracy sought to proved through the catering of food. The Court in Salonga stressed: The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashimn v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so. (id., pp. 461- 462) Because of the foregoing, I take exception to that part of the ponencia which will read the informations as charging simple rebellion. This case did not arise from innocent error. If an information charges murder but its contents show only the ingredients of homicide, the Judge may rightly read it as charging homicide. In these cases, however, there is a deliberate attempt to charge the petitioners for an offense which this Court has ruled as non-existent. The prosecution wanted Hernandez to be reversed. Since the prosecution has filed informations for a crime which, under our rulings, does not exist, those informations should be treated as null and void. New informations charging the correct offense should be filed. And in G.R. No. 92164, an extra effort should be made to see whether or not the Principle in Salonga v. Cruz Patio, et al. (supra) has been violated. The Court is not, in any way, preventing the Government from using more effective weapons to suppress rebellion. If the Government feels that the current situation calls for the imposition of more severe penalties like death or the creation of new crimes like rebellion complexed with murder, the r emedy is with Congress, not the courts. I, therefore, vote to GRANT the petitions and to ORDER the respondent court to DISMISS the void informations for a non-existent crime. FELICIANO, J., concurring: I concur in the result reached by the majority of the Court. I believe that there are certain aspects of the Hernandez doctrine that, as an abstract question of law, could stand reexamination or clarification. I have in mind in particular matters such as the correct or appropriate relationship between Article 134 and Article 135 of the Revised Penal Code. This is a matter which relates to the legal concept of rebellion in our legal system. If one examines the actual terms of Article 134 (entitled: "Rebellion or Insurrection-How Committed"), it would appear that this Article specifies both the overt acts and the criminal purpose which, when put together, would constitute the offense of rebellion. Thus, Article 134 states that "the crime of rebellion is committed by rising publicly and taking arms against the Government "(i.e., the overt acts comprising rebellion), "for the purpose of (i.e., the specific criminal intent or political objective) removing from the allegiance to said government or its laws the territory of the Republic of the Philippines or any part thereof, or any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of their powers or prerogatives." At the same time, Article 135 (entitled: "Penalty for Rebellion or Insurrection.") sets out a listing of acts or particular measures which appear to fall under the rubric of rebellion or insurrection: "engaging in war against the forces of the Government, destroying property or committing serious violence, exacting contributions or diverting public funds from the law ful purpose for which they have been appropriated." Are these modalities of rebellion generally? Or are they particular modes by which those "who promote [ ], maintain [ ] or head [ ] a rebellion or insurrection" commit rebellion, or particular modes of participation in a rebellion by public officers or employees? Clearly, the scope of the legal concept of rebellion relates to the distinction between, on the one hand, the indispensable acts or ingredients of the crime of rebellion under the Revised Penal Code and, on the other hand, differing optional modes of seeking to carry out the political or social objective of the rebellion or insurrection. The difficulty that is at once raised by any effort to examine once more even the above threshold questions is that the results of such re-examination may well be that acts which under the Hernandez doctrine are absorbed into rebellion, may be characterized as separate or discrete offenses which, as a matter of law, can either be prosecuted separately from rebellion or prosecuted under the provisions of Article 48 of the Revised Penal Code, which (both Clause 1 and Clause 2 thereof) clearly envisage the existence of at least two (2) distinct offenses. To reach such a conclusion in the case at bar, would, as far as I can see, result in colliding with the fundamental non-retroactivity principle (Article 4, Civil Code; Article 22, Revised Penal Code; both in relation to Article 8, Civil Code). The non-retroactivity rule applies to statutes principally. But, statutes do not exist in the abstract but rather bear upon the lives of people with the specific form given them by judicial decisions interpreting their norms. Judicial decisions construing statutory norms give specific shape and content to such norms. In time, the statutory norms become encrusted with the glosses placed upon them by the courts and the glosses become integral with the norms (Cf Caltex v. Palomar, 18 SCRA 247 [1966]). Thus, while in legal theory, judicial interpretation of a statute becomes part of the law as of the date that the law was originally enacted, I believe this theory is not to be applied rigorously where a new judicial doctrine is announced, in particular one overruling a
previous existing doctrine of long standing (here, 36 years) and most specially not where the statute construed is criminal in nature and the new doctrine is more onerous for the accused than the pre-existing one (People v. Jabinal, 55 SCRA 607 [1974]; People v. Licera, 65 SCRA 270 [1975]; Gumabon v. Director of Prisons, 37 SCRA 420 [1971]). Moreover, the non-retroactivity rule whether in respect of legislative acts or judicial decisions has constitutional implications. The prevailing rule in the United States is that a judicial decision that retroactively renders an act criminal or enhances the severity of the penalty prescribed for an offense, is vulnerable to constitutional challenge based upon the rule against ex post facto laws and the due process clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d 894 [1964]; Marks v. U.S., 43 US 188, 51 L. Ed. 2d 260 [1977]; Devine v. New Mexico Department of Corrections, 866 F. 2d 339 [1989]). It is urged by the Solicitor General that the non-retroactivity principle does not present any real problem for the reason that the Hernandez doctrine was based upon Article 48, second clause, of the Revised Penal Code and not upon the first clause thereof, while it is precisely the first clause of Article 48 that the Government here invokes. It is, however, open to serious doubt whether Hernandez can reasonably be so simply and sharply characterized. And assuming the Hernandez could be so characterized, subsequent cases refer to theHernandez doctrine in terms which do not distinguish clearly between the first clause and the second clause of Article 48 (e.g., People v. Geronimo, 100 Phil. 90 [1956]; People v. Rodriguez, 107 Phil. 659 [1960]). Thus, it appears to me that the critical question would be whether a man of ordinary intelligence would have necessarily read or understood the Hernandez doctrine as referring exclusively to Article 48, second clause. Put in slightly different terms, the important question would be whether the new doctrine here proposed by the Government could fairly have been derived by a man of average intelligence (or counsel of average competence in the law) from an examination of Articles 134 and 135 of the Revised Penal Code as interpreted by the Court in theHernandez and subsequent cases. To formulate the question ill these terms would almost be to compel a negative answer, especially in view of the conclusions reached by the Court and its several Members today. Finally, there appears to be no question that the new doctrine that the Government would have us discover for the first time since the promulgation of the Revised Penal Code in 1932, would be more onerous for the respondent accused than the si mple application of the Hernandez doctrine that murders which have been committed on the occasion of and in furtherance of the crime of rebellion must be deemed absorbed in the offense of simple rebellion. I agree therefore that the information in this case must be viewed as charging only the crime of simple rebellion. FERNAN, C.J., concurring and dissenting: I am constrained to write this separate opinion on what seems to be a rigid adherence to the 1956 ruling of the Court. The numerous challenges to the doctrine enunciated in the case of People vs. Hernandez, 99 Phil. 515 (1956) should at once demonstrate the need to redefine the applicability of said doctrine so as to make it conformable with accepted and wellsettled principles of criminal law and jurisprudence. To my mind, the Hernandez doctrine should not be interpreted as an all-embracing authority for the rule that all common crimes committed on the occasion, or in furtherance of, or in connection with, rebellion are absorbed by the latter. To that extent, I cannot go along with the view of the majority in the instant case that 'Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion" (p. 9, Decision). The Hernandez doctrine has served the purpose for which it was appealed by the Court in 1956 during the communist-inspired rebellion of the Huks. The changes in our society in the span of 34 years since then have far-reaching effects on the allembracing applicability of the doctrine considering the emergence of alternative modes of seizing the powers of the duly constituted Government not contemplated in Articles 134 and 135 of the Revised Penal Code and their consequent effects on the lives of our people. The doctrine was good law then, but I believe that there is a certain aspect of the Hernandez doctrine that needs clarification. With all due respect to the views of my brethren in the Court, I believe that the Court, in the instant case, should have further considered that distinction between acts or offenses which are indispensable in the commission of rebellion, on the one hand, and those acts or offenses that are merely necessary but not indispensable in the commission of rebellion, on the other. The majority of the Court is correct in adopting, albeit impliedly, the view in Hernandez case that when an offense perpetrated as a necessary means of committing another, which is an element of the la tter, the resulting interlocking crimes should be considered as only one simple offense and must be deemed outside the operation of the complex crime provision (Article 48) of the Revise d Penal Code. As in the case of Hernandez, the Court, however, failed in the instant case to distinguish what is indispensable from what is merely necessary in the commission of an offense, resulting thus in the rule that common crimes like murder, arson, robbery, etc. committed in the course or on the occasion of rebellion are absorbed or included in the latter as elements thereof. The relevance of the distinction is significant, more particularly, if applied to contemporaneous events happening in our country today. Theoretically, a crime which is indispensable in the commission of another must necessarily be an element of the latter; but a crime that is merely necessary but not indispensable in the commission of another is not an element of the latter, and if and when actually committed, brings the interlocking crime within the operation of the complex crime provision (Art. 48) of the Revised Penal Code. With that distinction, common crimes committed against Government forces and property in the course of rebellion are properly considered indispensable overt acts of rebellion and are logically absorbed in it as virtual ingredients or elements thereof, but common crimes committed against the civilian population in the course or on the occasion of rebellion and in furtherance thereof, may be necessary but not indispensable in committing the latter, and may, therefore, not be considered as elements of the said crime of rebellion. To illustrate, the deaths occurring during armed confrontation or clashes between government forces and the rebels are absorbed in the rebellion, and would be those resulting from the bombing of military camps and installations, as these acts are indispensable in carrying out the rebellion. But deliberately shooting down an unarmed innocent civilian to instill fear or create chaos among the people, although done in the furtherance of the rebellion, should not be absorbed in the crime of rebellion as the felonious act is merely necessary, but not indispensable. In the latter case, Article 48 of the Revised Penal Code should apply. The occurrence of a coup d' etat in our country as a mode of seizing the powers of the duly-constituted government by staging surprise attacks or occupying centers of powers, of which this Court should take judicial notice, has introduced a new dimension to the interpretation of the provisions on rebellion and insurrection in the Revised Penal Code. Generally, as a mode of seizing the powers of the duly constituted government, it falls within the contemplation of rebellion under the Revised Penal Code, but, strictly construed, a coup d'etat per se is a class by itself. The manner of its execution and the extent and magnitude of its effects on the lives of the people distinguish a coup d'etat from the traditional definition and modes of commission attached by the Revised Penal Code to the crime of rebellion as applied by the Court to the communist-inspired rebellion of the 1950's. A coup d'etat may be executed successfully without its perpetrators resorting to the commission of other serious crimes such as murder, arson, kidnapping, robbery, etc. because of the element of surprise and the precise timing of its execution. In extreme cases where murder, arson, robbery, and other common crimes are committed on the occasion of a coup d' etat, the distinction referred to above on what is necessary and what is indispensable in the commission of the coup d'etat should be painstakingly considered as the Court should have done in the case of herein petitioners.
I concur in the result insofar as the other issues are resolved by the Court but I take exception to the vote of the majority on the broad application of the Hernandez doctrine. BIDIN, J., concurring and dissenting: I concur with the majority opinion except as regards the dispositive portion thereof which orders the remand of the case to the respondent judge for further proceedings to fix the amount of bail to be posted by the petitioner. I submit that the proceedings need not be remanded to the respondent judge for the purpose of fixing bail since we have construed the indictment herein as charging simple rebellion, an offense which is bailable. Consequently, habeas corpus is the proper remedy available to petitioner as an accused who had been charged with simple rebellion, a bailable offense but who had been denied his right to bail by the respondent judge in violation of petitioner's constitutional right to bail. In view thereof, the responsibility of fixing the amount of bail and approval thereof when filed, devolves upon us, if complete relief is to be accorded to petitioner in the instant proceedings. It is indubitable that before conviction, admission to bail is a matter of right to the defendant, accused before the Regional Trial Court of an offense less than capital (Section 13 Article III, Constitution and Section 3, Rule 114). Petitioner is, before Us, on a petition for habeas corpus praying, among others, for his provisional release on bail. Since the offense charged (construed as simple rebellion) admits of bail, it is incumbent upon us m the exercise of our jurisdiction over the petition for habeas corpus (Section 5 (1), Article VIII, Constitution; Section 2, Rule 102), to grant petitioner his right to bail and having admitted h im to bail, to fix the amount thereof in such sums as the court deems reasonable. Thereafter, the rules require that "the proceedings together with the bond" shall forthwith be certified to the respondent trial court (Section 14, Rule 102). Accordingly, the cash bond in the amount of P 100,000.00 posted by petitioner for his provisional release pursuant to our resolution dated March 6, 1990 should now be deemed and admitted as his bail bond for his provisional release in the case (simple rebellion) pending before the respondent judge, without necessity of a remand for further proceedings, conditioned for his (petitioner's) appearance before the trial court to abide its order or judgment in the said case. SARMIENTO, J., concurring and dissenting: I agree that People v. Hernandez 1 should abide. More than three decades after which it was penned, it has firmly set tled in the tomes of our jurisprudence as correct doctrine. As Hernandez put it, rebellion means "engaging m war against the forces of the government," 2 which implies "resort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake. ..." 3whether committed in furtherance, of as a necessary means for the commission, or in the course, of rebellion. To say that rebellion may be complexed with any other offense, in this case murder, is to play into a contradiction in terms because exactly, rebellion includes murder, among other possible crimes. I also agree that the information may stand as an accusation for simple rebellion. Since the acts complained of as constituting rebellion have been embodied in the information, mention therein of murder as a complexing offense is a surplusage, because in any case, the crime of rebellion is left fully described. 4 At any rate, the government need only amend the information by a clerical correction, since an amendment will not alter its substance. I dissent, however, insofar as the majority orders the remand of the matter of bail to the lower court. I t ake it that when we, in our Resolution of March 6, 1990, granted the petitioner "provisional liberty" upon the filing of a bond of P100,000.00, we granted him bail. The fact that we gave him "provisional liberty" is in my view, of no moment, because bail means provisional liberty. It will serve no useful purpose to have the trial court hear the incident again when we ourselves have been satisfied that the petiti oner is entitled to temporary freedom. PADILLA, J., dissenting: I concur in the majority opinion insofar as it holds that the ruling in People vs. Hernandez, 99 Phil. 515 "remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion." I dissent, however, from the majority opinion insofar as it holds that the information in question, while charging the comple x crime of rebellion with murder and multiple frustrated murder, "is to be read as charging simple rebellion." The present cases are to be distinguished from the Hernandez case in at least one (1) material respect. In theHernandez case, this Court was confronted with an appealed case, i.e., Hernandez had been convicted by the trial court of the complex crime of rebellion with murder, arson and robbery, and his plea to be released on bail before the Supreme Court, pending appeal, gave birth to the now celebrated Hernandez doctrine that the crime of rebellion complexed with murder, arson and robbery does not exist. In the present cases, on the other hand, the Court is confronted with an original case, i.e., where an information has been recently filed in the trial court and the petitioners have not even pleaded thereto. Furthermore, the Supreme Court, in the Hernandez case, was "ground-breaking" on the issue of whether rebellion can be complexed with murder, arson, robbery, etc. In the present cases, on the other hand, the prosecution and the lower court, not only had the Hernandez doctrine (as case law), but Executive Order No. 187 of President Corazon C. Aquino dated 5 June 1987 (as statutory law) to bind them to the legal proposition that the crime of rebellion complexed with murder, and multiple frustrated murder does not exist. And yet, notwithstanding these unmistakable and controlling beacon lights-absent when this Court laid down theHernandez doctrine-the prosecution has insisted in filing, and the lower court has persisted in hearing, an information charging the petitioners with rebellion complexed with murder an multiple frustrated murder. That information is clearly a nullity and plainly void ab initio. Its head should not be allowed to surface. As a nullity i n substantive law, it charges nothing; it has given rise to nothing. The warrants of arrest issued pursuant thereto are as null and void as the information on which they are anchored. And, since the entire question of the information's validity is before the Court in these habeas corpus cases, I venture to say that the information isfatally defective, even under procedural law, because it charges more than one (1) offense (Sec. 13, Rule 110, Rules of Court). I submit then that it is not for this Court to energize a dead and, at best, fatally decrepit information by labelling or "baptizing" it differently from what it announces itself to be. The prosecution must file an entirely new and proper information, for this entire exercise to merit the serious consideration of the courts. ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest, and ORDER the information for rebellion complexed with murder and multiple frustrated murder in Criminal Case Nos. 90 -10941, RTC of Quezon City, DISMISSED. Consequently, the petitioners should be ordered permanently released and their bails cancelled. Paras, J., concurs. Separate Opinions MELENCIO-HERRERA, J., concurring:
I join my colleagues in holding that the Hernandez doctrine, which has been with us for the past three decades, remains good law and, thus, should remain undisturbed, despite periodic challenges to it that, ironically, have only served to strengthen its pronouncements. I take exception to the view, however, that habeas corpus was not the proper remedy. Had the Information filed below charged merely the simple crime of Rebellion, that proposition could have been plausible. But that Information charged Rebellion complexed with Murder and Multiple Frustrated Murder, a crime which does not exist in our statute books. The charge was obviously intended to make the penalty for the most serious offense in its maximum period imposable upon the offender pursuant to Article 48 of the Revised Penal Code. Thus, no bail was recommended in the Information nor was any prescribed in the Warrant of Arrest issued by the Trial Court. Under the attendant circumstances, therefore, to have filed a Motion to Quash before the lower Court would not have brought about the speedy relief from unlawful restraint that petitioner was seeking. During the pendency of said Mo tion before the lower Court, petitioner could have continued to languish in detention. Besides, the Writ ofHabeas Corpus may still issue even if another remedy, which is less effective, may be availed of (Chavez vs. Court of Appeals, 24 SCRA 663). It is true that habeas corpus would ordinarily not he when a person is under custody by virtue of a process issued by a Court. The Court, however, must have jurisdiction to issue the process. In this case, the Court below must be deemed to have been ousted of jurisdiction when it illegally curtailed petitioner's liberty. Habeas corpus is thus available. The writ of habeas corpus is available to relieve persons from unlawful restraint. But where the detention or confinement is the result of a process issued by the court or judge or by virtue of a judgment or sentence, the writ ordinarily cannot be availed of. I t may still be invoked though if the process, judgment or sentence proceeded from a court or tribunal the jurisdiction of which may be assailed. Even if it had authority to act at the outset, it is now the prevailing doctrine that a deprivation of constitutional right, if shown to exist, would oust it of jurisdiction. In such a case, habeas corpus could be relied upon to regain one's liberty (Celeste vs. People, 31 SCRA 391) [Emphasis emphasis]. The Petition for habeas corpus was precisely premised on the violation of petitioner's constitutional right to bail inasmuch as rebellion, under the present state of the law, is a bailable offense and the crime for which petitioner stands accused of and for which he was denied bail is non-existent in law. While litigants should, as a rule, ascend the steps of the judicial ladder, nothing should stop this Court from taking cognizance of petitions brought before it raising urgent constitutional issues, any procedural flaw notwithstanding. The rules on habeas corpus are to be liberally construed (Ganaway v. Quilen, 42 Phil. 805), the writ of habeas corpus being the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. The scope and flexibility of the writ-its capacity to reach all manner of illegal detention-its ability to cut through barriers of form and procedural mazeshave always been emphasized and jealously guarded by courts and lawmakers (Gumabon v. Director of Bureau of Prisons, 37 SCRA 420) [emphasis supplied]. The proliferation of cases in this Court, which followed in the wake of this Petition, was brought about by the insistence of the prosecution to charge the crime of Rebellion complexed with other common offenses notwithstanding the fact that this Court had not yet ruled on the validity of that charge and had granted provisional liberty to petitioner. If, indeed, it is desired to make the crime of Rebellion a capital offense (now punishable by reclusion perpetua), the remedy lies in legislation. But Article 142-A 1 of the Revised Penal Code, along with P.D. No. 942, were repealed, for being "repressive," by EO No. 187 on 5 June 1987. EO 187 further explicitly provided that Article 134 (and others enumerated) of the Revised Penal Code was "restored to its full force and effect as it existed before said amendatory decrees." Having been so repealed, this Court is bereft of power to legislate into existence, under the guise of re-examining a settled doctrine, a "creature unknown in law"- the complex crime of Rebellion with Murder. The remand of the case to the lower Court for further proceedings is in order. The Writ of Habeas Corpus has served its purpose. GUTIERREZ, JR., J., concurring: I join the Court's decision to grant the petition. In reiterating the rule that under existing law rebelli on may not be complexed with murder, the Court emphasizes that it cannot legislate a new-c rime into existence nor prescribe a penalty for its commission. That function is exclusively for Congress. I write this separate opinion to make clear how I view certain issues arising from these cases, especially on how the defective informations filed by the prosecutors should have been treated. I agree with the ponente that a petition for habeas corpus is ordinarily not the proper procedure to assert the right to bail . Under the special circumstances of this case, however, the petitioners had no other recourse. They had to come to us. First, the trial court was certainly aware of the decision in People v. Hernandez, 99 Phil. 515 (1956) that there is no such crime in our statute books as rebellion complexed with murder, that murder committed in connection with a rebellion is absorbed by the crime of rebellion, and that a resort to arms resulting in the destruction of life or property constitutes neither two or more offe nses nor a complex crime but one crime-rebellion pure and simple. Second, Hernandez has been the law for 34 years. It has been reiterated in equally sensational cases. All lawyers and even law students are aware of the doctrine. Attempts to have the doctrine re -examined have been consistently rejected by this Court. Third, President Marcos through the use of his then legislative powers, issued Pres. Decree 942, thereby installing the new cri me of rebellion complexed with offenses like murder where graver penalties are imposed by law. However, President Aquino using her then legislative powers expressly repealed PD 942 by issuing Exec. Order 187. She thereby erased the crime of rebellion complexed with murder and made it clear that theHernandez doctrine remains the controlling rule. The prosecution has not explained why it insists on resurrecting an offense expressly wiped out by the President. The prosecution, in effect, questions the action of the President in repealing a repressive decree, a decree which, according to the repeal order, is violative of human rights. Fourth, any re-examination of the Hernandez doctrine brings the ex post facto principle into the picture. Decisions of this Court form part of our legal system. Even if we declare that rebellion may be complexed with murder, our declaration can not be made retroactive where the effect is to imprison a person for a crime which did not exist until the Supreme Court reversed itself. And fifth, the attempts to distinguish this case from the Hernandez case by stressing that the killings charged in the information were committed "on the occasion of, but not a necessary means for, the commission of rebellion" result in outlandish consequences and ignore the basic nature of rebellion. Thus, under the prosecution theory a bomb dropped on PTV -4 which kills government troopers results in simple rebellion because the act is a necessary means to make the rebellion succeed. However, if the same bomb also kills some civilians in the neighborhood, the dropping of the bomb becomes rebellion complexed with murder because the killing of civilians is not necessary for the success of a rebellion and, therefore, the killings are only "on the occasion of but not a 'necessary means for' the commission of rebellion. This argument is puerile. The crime of rebellion consists of many acts. The dropping of one bomb cannot be isolated as a separate crime of rebellion. Neither should the dropping of one hundred bombs or the firing of thousands of machine gun bullets be broken up into a hundred or thousands of separate offenses, if each bomb or each bullet happens to result in the destruction of life and prope rty. The same act cannot be punishable by separate penalties depending on what strikes the fancy of prosecutors-punishment for
the killing of soldiers or retribution for the deaths of civilians. The prosecution also loses sight of the regrettable fact that in total war and in rebellion the killing of civilians, the laying waste of civilian economies, the massacre of innocent people, the blowing up of passenger airplanes, and other acts of terrorism are all used by those engaged in rebellion. We cannot and should not try to ascertain the intent of rebels for each single act unless the act is plainly not connected to the rebellion. We cannot use Article 48 of the Revised Penal Code in lieu of still-to- be-enacted legislation. The killing of civilians during a rebel attack on military facilities furthers the rebellion and is part of the rebellion. The trial court was certainly aware of all the above considerations. I cannot understand why the trial Judge issued the warrant of arrest which categorically states therein that the accused was not entitled to bail. The petitioner was compelled to come to us so he would not be arrested without bail for a nonexistent crime. The trial court forgot to apply an established doctrine of the Supreme Court. Worse, it issued a warrant which reversed 34 years of established procedure based on a well-known Supreme Court ruling. All courts should remember that they form part of an independent judicial system; they do not belong to the prosecution servi ce. A court should never play into the hands of the prosecution and blindly comply with its erroneous manifestations. Faced with an information charging a manifestly non-existent crime, the duty of a trial court is to throw it out. Or, at the very least and where possible, make it conform to the law. A lower court cannot re-examine and reverse a decision of the Supreme Court especially a decision consistently followed for 34 years. Where a Judge disagrees with a Supreme Court ruling, he is free to express his reservations in the body of his decision, order, or resolution. However, any judgment he renders, any order he prescribes, and any processes he issues must follow the Supreme Court precedent. A trial court has no jurisdiction to reverse or ignore precedents of the Supreme Court. In thi s particular case, it should have been the Solicitor General coming to this Court to question the lower court's rejection of the application for a warrant of arrest without bail. It should have been the Solicitor-General provoking the issue of re-examination instead of the petitioners asking to be freed from their arrest for a non-existent crime. The principle bears repeating: Respondent Court of Appeals really was devoid of any choice at all. It could not have ruled in any other way on the legal question raised. This Tribunal having spoken, its duty was to obey. It is as simple as that. There is relevance to this excerpt from Barrera v. Barrera. (L-31589, July 31, 1970, 34 SCRA 98) 'The delicate task of ascertaining the significance that attaches to a constitutional or statutory provision, an executive order, a procedural norm or a municipal ordinance is committed to the judiciary. It thus discharges a role no less crucial than that appertaining to the other two departments in the maintenance of the rule of law. To assure stability in legal relations and avoid confusion, it has to speak with one voice. It does so with finality, logi cally and rightly, through the highest judicial organ, this Court. What it says then should be definitive and authoritative, binding on those occupying the lower ranks in the judicial hierarchy. They have to defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in People v. Vera, 65 Phil. 56 [1937] was cited). The ensuing paragraph of the opinion in Barrera further emphasizes the point: Such a thought was reiterated in an opinion of Justice J.B.L. Reyes and further emphasized in these words: 'Judge Gaudencio Cloribel need not be reminded that the Supreme Court, by tradition and in our system of judicial administration, has the last word on what the law is; it is the final arbiter of any justifiable controversy. There is only one Supreme Court from whose decisions all other courts should take their bearings. (Ibid. Justice J.B.L. Reyes spoke thus in Albert v. Court of First Instance of Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961. (Tugade v. Court of Appeals, 85 SCRA 226 [1978]. See also Albert v. Court of First Instance, 23 SCRA 948 [1968] and Vir-Jen Shipping and Marine Services, Inc. v. NLRC, 125 SCRA 577 [1983]) I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et al. even more inexplicable. In the case of the Panlilios, any probable cause to commit the non- existent crime of rebellion complexed with murder exists only in the minds of the prosecutors, not in the records of the c ase. I have gone over the records and pleadings furnished to the members of the Supreme Court. I listened intently to the oral arguments during the hearing and it was quite apparent that the constitutional requirement of probable cause was not satisfied. In fact, in answer to my query for any other proofs to support the issuance of a warrant of arrest, the answer was that the evidence would be submitted in due time to the trial court. The spouses Panlilio and one parent have been in the restaurant business for decades. Under the records of these petitions, any restaurant owner or hotel manager who serves food to rebels is a co-conspirator in the rebellion. The absurdity of this proposition is apparent if we bear in mind that rebels ride in buses and jeepneys, eat meals in rural houses when mealtime finds them in the vicinity, join weddings, fiestas, and other parties, play basketball with barrio youths, attend masses and church services and otherwise mix with people in various gatherings. Even if the hosts recognize them to be rebels and fail to shoo them away, it does not necessarily follow that the former are co-conspirators in a rebellion. The only basis for probable cause shown by the records of the Panlilio case is the alleged fact that the petitioners served food to rebels at the Enrile household and a hotel supervisor asked two or three of their waiters, without reason, to go on a vacation. Clearly, a much, much stronger showing of probable cause must be shown. In Salonga v. Cruz Paño, 134 SCRA 438 (1985), then Senator Salonga was charged as a conspirator in the heinous bombing of innocent civilians because the man who planted the bomb had, sometime earlier, appeared in a group photograph taken during a birthday party in the United States with the Senator and other guests. It was a case of conspiracy proved through a group picture. Here, it is a case of conspiracy sought to proved through the catering of food. The Court in Salonga stressed: The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashimn v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizi ng and not denigrating constitutional rights. So it has been before. It should continue to be so. (id., pp. 461- 462) Because of the foregoing, I take exception to that part of the ponencia which will read the informations as charging simple rebellion. This case did not arise from innocent error. If an information charges murder but its contents show only the ingredients of homicide, the Judge may rightly read it as charging homicide. In these cases, however, there is a deliberate attempt to
charge the petitioners for an offense which this Court has ruled as non-existent. The prosecution wanted Hernandez to be reversed. Since the prosecution has filed informations for a crime which, under our rulings, does not exist, those informations should be treated as null and void. New informations charging the correct offense should be filed. And in G.R. No. 92164, an extra effort should be made to see whether or not the Principle in Salonga v. Cruz Patio, et al. (supra) has been violated. The Court is not, in any way, preventing the Government from using more effective weapons to suppress rebellion. If the Government feels that the current situation calls for the imposition of more severe penalties like death or the creation of new crimes like rebellion complexed with murder, the r emedy is with Congress, not the courts. I, therefore, vote to GRANT the petitions and to ORDER the respondent court to DISMISS the void informations for a non-existent crime. FELICIANO, J., concurring: I concur in the result reached by the majority of the Court. I believe that there are certain aspects of the Hernandez doctrine that, as an abstract question of law, could stand reexamination or clarification. I have in mind in particular matters such as the correct or appropriate relationship between Article 134 and Article 135 of the Revised Penal Code. This is a matter which relates to the legal concept of rebellion in our legal system. If one examines the actual terms of Article 134 (entitled: "Rebellion or Insurrection-How Committed"), it would appear that this Article specifies both the overt acts and the criminal purpose which, when put together, would constitute the offense of rebellion. Thus, Article 134 states that "the crime of rebellion is committed by rising publicly and taking arms against the Government "(i.e., the overt acts comprising rebellion), "for the purpose of (i.e., the specific criminal intent or political objective) removing from the allegiance to said government or its laws the territory of the Republic of the Philippines or any part thereof, or any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of their powers or prerogatives." At the same time, Article 135 (entitled: "Penalty for Rebellion or Insurrection.") sets out a listing of acts or particular measures which appear to fall under the rubric of rebellion or insurrection: "engaging in war against the forces of the Government, destroying property or committing serious violence, exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated." Are these modalities of rebellion generally? Or are they particular modes by which those "who promote [ ], maintain [ ] or head [ ] a rebellion or insurrection" commit rebellion, or particular modes of participation in a rebellion by public officers or employees? Clearly, the scope of the legal concept of rebellion relates to the distinction between, on the one hand, the indispensable acts or ingredients of the crime of rebellion under the Revised Penal Code and, on the other hand, differing optional modes of seeking to carry out the political or social objective of the rebellion or insurrection. The difficulty that is at once raised by any effort to examine once more even the above threshold questions is that the results of such re-examination may well be that acts which under the Hernandez doctrine are absorbed into rebellion, may be characterized as separate or discrete offenses which, as a matter of law, can either be prosecuted separately from rebellion or prosecuted under the provisions of Article 48 of the Revised Penal Code, which (both Clause 1 and Clause 2 thereof) clearly envisage the existence of at least two (2) distinct offenses. To reach such a conclusion in the case at bar, would, as far as I can see, result in colliding with the fundamental non-retroactivity principle (Article 4, Civil Code; Article 22, Revised Penal Code; both in relation to Article 8, Civil Code). The non-retroactivity rule applies to statutes principally. But, statutes do not exist in the abstract but rather bear upon the lives of people with the specific form given them by judicial decisions interpreting their norms. Judicial decisions construing statutory norms give specific shape and content to such norms. In time, the statutory norms become encrusted with the glosses placed upon them by the courts and the glosses become integral with the norms (Cf Caltex v. Palomar, 18 SCRA 247 [1966]). Thus, while in legal theory, judicial interpretation of a statute becomes part of the law as of the date that the law was originally enacted, I believe this theory is not to be applied rigorously where a new judicial doctrine is announced, in particular one overruling a previous existing doctrine of long standing (here, 36 years) and most specially not where the statute construed is criminal in nature and the new doctrine is more onerous for the accused than the pre-existing one (People v. Jabinal, 55 SCRA 607 [1974]; People v. Licera, 65 SCRA 270 [1975]; Gumabon v. Director of Prisons, 37 SCRA 420 [1971]). Moreover, the non-retroactivity rule whether in respect of legislative acts or judicial decisions has constitutional implications. The prevailing rule in the United States is that a judicial decision that retroactively renders an act criminal or enhances the severity of the penalty prescribed for an offense, is vulnerable to constitutional challenge based upon the rule against ex post facto laws and the due process clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d 894 [1964]; Marks v. U.S., 43 US 188, 51 L. Ed. 2d 260 [1977]; Devine v. New Mexico Department of Corrections, 866 F. 2d 339 [1989]). It is urged by the Solicitor General that the non-retroactivity principle does not present any real problem for the reason that the Hernandez doctrine was based upon Article 48, second clause, of the Revised Penal Code and not upon the first clause thereof, while it is precisely the first clause of Article 48 that the Government here invokes. It is, however, open to serious doubt whether Hernandez can reasonably be so simply and sharply characterized. And assuming the Hernandez could be so characterized, subsequent cases refer to theHernandez doctrine in terms which do not distinguish clearly between the first clause and the second clause of Article 48 (e.g., People v. Geronimo, 100 Phil. 90 [1956]; People v. Rodriguez, 107 Phil. 659 [1960]). Thus, it appears to me that the critical question would be whether a man of ordinary intelligence would have necessa rily read or understood the Hernandez doctrine as referring exclusively to Article 48, second clause. Put in slightly different terms, the important question would be whether the new doctrine here proposed by the Government could fairly have been derived by a man of average intelligence (or counsel of average competence in the law) from an examination of Articles 134 and 135 of the Revised Penal Code as interpreted by the Court in theHernandez and subsequent cases. To formulate the question ill these terms would almost be to compel a negative answer, especially in view of the conclusions reached by the Court and its several Members today. Finally, there appears to be no question that the new doctrine that the Government would have us discover for the first time since the promulgation of the Revised Penal Code in 1932, would be more onerous for the respondent accused than the si mple application of the Hernandez doctrine that murders which have been committed on the occasion of and in furtherance of the crime of rebellion must be deemed absorbed in the offense of simple rebellion. I agree therefore that the information in this case must be viewed as charging only the crime of simple rebellion. FERNAN, C.J., concurring and dissenting: I am constrained to write this separate opinion on what seems to be a rigid adherence to the 1956 ruling of the Court. The numerous challenges to the doctrine enunciated in the case of People vs. Hernandez, 99 Phil. 515 (1956) should at once demonstrate the need to redefine the applicability of said doctrine so as to make it conformable with accepted and wellsettled principles of criminal law and jurisprudence. To my mind, the Hernandez doctrine should not be interpreted as an all-embracing authority for the rule that all common crimes committed on the occasion, or in furtherance of, or in connection with, rebellion are absorbed by the latter. To that extent, I cannot go along with the view of the majority in the instant case that 'Hernandez remains binding doctrine operating to prohibit
the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion" (p. 9, Decision). The Hernandez doctrine has served the purpose for which it was appealed by the Court in 1956 during the communist-inspired rebellion of the Huks. The changes in our society in the span of 34 years since then have far-reaching effects on the allembracing applicability of the doctrine considering the emergence of alternative modes of seizing the powers of the duly constituted Government not contemplated in Articles 134 and 135 of the Revised Penal Code and their consequent effects on the lives of our people. The doctrine was good law then, but I believe that there is a certain aspect of the Hernandez doctrine that needs clarification. With all due respect to the views of my brethren in the Court, I believe that the Court, in the instant case, should have further considered that distinction between acts or offenses which are indispensable in the commission of rebellion, on the one hand, and those acts or offenses that are merely necessary but not indispensable in the commission of rebellion, on the other. The majority of the Court is correct in adopting, albeit impliedly, the view in Hernandez case that when an offense perpetrated as a necessary means of committing another, which is an element of the latter, the resulting interlocking crimes should be conside red as only one simple offense and must be deemed outside the operation of the c omplex crime provision (Article 48) of the Revised Penal Code. As in the case of Hernandez, the Court, however, failed in the instant case to distinguish what is indispensable fr om what is merely necessary in the commission of an offense, resulting thus in the rule that common crimes like murder, arson, robbery, etc. committed in the course or on the occasion of rebellion are absorbed or included in the latter as elements thereof. The relevance of the distinction is significant, more particularly, if applied to contemporaneous events happening in our c ountry today. Theoretically, a crime which is indispensable in the commission of another must necessarily be an element of the latter; but a crime that is merely necessary but not indispensable in the commission of another is not an element of the latter, and if and when actually committed, brings the interlocking crime within the operation of the complex crime provision (Art. 48) of the Revised Penal Code. With that distinction, common crimes committed against Government forces and property in the course of rebellion are properly considered indispensable overt acts of rebellion and are logically absorbed in it as virtual ingredients or elements thereof, but common crimes committed against the civilian population in the course or on the occasion of rebellion and in furtherance thereof, may be necessary but not indispensable in committing the latter, and may, therefore, not be considered as elements of the said crime of rebellion. To illustrate, the deaths occurring during armed confrontation or clashes between government forces and the rebels are absorbed in the rebellion, and would be those resulting from the bombing of military camps and installations, as these acts are indispensable in carrying out the rebellion. But deliberately shooting down an unarmed innocent civilian to instill fear or create chaos among the people, although done in the furtherance of the rebellion, should not be absorbed in the crime of rebellion as the felonious act is merely necessary, but not indispensable. In the latter case, Article 48 of the Revised Penal Code should apply. The occurrence of a coup d' etat in our country as a mode of seizing the powers of the duly-constituted government by staging surprise attacks or occupying centers of powers, of which this Court should take judicial notice, has introduced a new dimension to the interpretation of the provisions on rebellion and insurrection in the Revised Penal Code. Generally, as a mode of seizing the powers of the duly constituted government, it falls within the contemplation of rebellion under the Revised Penal Code, but, strictly construed, a coup d'etat per se is a class by i tself. The manner of its execution and the extent and magnitude of it s effects on the lives of the people distinguish a coup d'etat from the traditional definition and modes of commission attached by the Revised Penal Code to the crime of rebellion as applied by the Court to the communist-inspired rebellion of the 1950's. A coup d'etat may be executed successfully without its perpetrators resorting to the commission of other serious crimes such as murder, arson, kidnapping, robbery, etc. because of the element of surprise and the precise timing of its execution. In extreme cases where murder, arson, robbery, and other common crimes are committed on the occasion of a coup d' etat, the distinction referred to above on what is necessary and what is indispensable in the commission of the coup d'etat should be painstakingly considered as the Court should have done in the case of herein petitioners. I concur in the result insofar as the other issues are resolved by the Court but I take exception to the vote of the majority on the broad application of the Hernandez doctrine. BIDIN, J., concurring and dissenting: I concur with the majority opinion except as regards the dispositive portion thereof which orders the remand of the case to the respondent judge for further proceedings to fix the amount of bail to be posted by the petitioner. I submit that the proceedings need not be remanded to the respondent judge for the purpose of fixing bail since we have construed the indictment herein as charging simple rebellion, an offense which is bailable. Consequently, habeas corpus is the proper remedy available to petitioner as an accused who had been charged with simple rebellion, a bailable offense but who had been denied his right to bail by the respondent judge in violation of petitioner's constitutional right to bail. In view thereof, the responsibility of fixing the amount of bail and approval thereof when filed, devolves upon us, if complete relief is to be accorded to petitioner in the instant proceedings. It is indubitable that before conviction, admission to bail is a matter of right to the defendant, accused before the Regional Trial Court of an offense less than capital (Section 13 Article III, Constitution and Section 3, Rule 114). Petitioner is, before Us, on a petition for habeas corpus praying, among others, for his provisional release on bail. Since the offense charged (construed as simple rebellion) admits of bail, it is incumbent upon us m the exercise of our jurisdiction over the petition for habeas corpus (Section 5 (1), Article VIII, Constitution; Section 2, Rule 102), to grant petitioner his ri ght to bail and having admitted him to bail, to fix the amount thereof in such sums as the court deems reasonable. Thereafter, the rules require that "the proceedings together with the bond" shall forthwith be certified to the respondent trial court (Section 14, Rule 102). Accordingly, the cash bond in the amount of P 100,000.00 posted by petitioner for his provisional release pursuant to our resolution dated March 6, 1990 should now be deemed and admitted as his bail bond for his provisional release in the case (simple rebellion) pending before the respondent judge, without necessity of a remand for further proceedings, conditioned for his (petitioner's) appearance before the trial court to abide its order or judgment in the said case. SARMIENTO, J., concurring and dissenting: I agree that People v. Hernandez 1 should abide. More than three decades after which it was penned, it has firmly settled in the tomes of our jurisprudence as correct doctrine. As Hernandez put it, rebellion means "engaging m war against the forces of the government," 2 which implies "resort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property, physic al injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake. ..." 3whether committed in furtherance, of as a necessary means for the commission, or in the course, of rebellion. To say that rebellion may be complexed with any other offense, in this case murder, is to play into a contradiction in terms because exactly, rebellion includes murder, among other possible crimes. I also agree that the information may stand as an accusation for simple rebellion. Since the acts complained of as constituting rebellion have been embodied in the information, mention therein of murder as a complexing offense is a surplusage, because in any case, the crime of rebellion is left fully described. 4
At any rate, the government need only amend the information by a clerical correction, since an amendment will not alter its substance. I dissent, however, insofar as the majority orders the remand of the matter of bail to the lower court. I take it that when w e, in our Resolution of March 6, 1990, granted the petitioner "provisional liberty" upon the filing of a bond of P100,000.00, we granted him bail. The fact that we gave him "provisional liberty" is in my view, of no moment, because bail means provisional liberty. It will serve no useful purpose to have the trial court hear the incident again when we ourselves have been satisfied that the petitioner is entitled to temporary freedom. PADILLA, J., dissenting: I concur in the majority opinion insofar as it holds that the ruling in People vs. Hernandez, 99 Phil. 515 "remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion." I dissent, however, from the majority opinion insofar as it holds that the information in question, while charging the complex crime of rebellion with murder and multiple frustrated murder, "is to be read as charging simple rebellion." The present cases are to be distinguished from the Hernandez case in at least one (1) material respect. In theHernandez case, this Court was confronted with an appealed case, i.e., Hernandez had been convicted by the trial court of the complex crime of rebellion with murder, arson and robbery, and his plea to be released on bail before the Supreme Court, pending appeal, gave birth to the now celebrated Hernandez doctrine that the crime of rebellion complexed with murder, arson and robbery does not exist. In the present cases, on the other hand, the Court is confronted with an original case, i.e., where an information has been recently filed in the trial court and the petitioners have not even pleaded thereto. Furthermore, the Supreme Court, in the Hernandez case, was "ground-breaking" on the issue of whether rebellion can be complexed with murder, arson, robbery, etc. In the present cases, on the other hand, the prosecution and the lower court, not only had the Hernandez doctrine (as case law), but Executive Order No. 187 of President Corazon C. Aquino dated 5 June 1987 (as statutory law) to bind them to the legal proposition that the crime of rebellion complexed with murder, and multiple frustrated murder does not exist. And yet, notwithstanding these unmistakable and controlling beacon lights-absent when this Court laid down theHernandez doctrine-the prosecution has insisted in filing, and the lower court has persisted in hearing, an information charging the petitioners with rebellion complexed with murder an multiple frustrated murder. That information is clearly a nullity and plainly void ab initio. Its head should not be allowed to surface. As a nullity i n substantive law, it charges nothing; it has given rise to nothing. The warrants of arrest issued pursuant thereto are as null and void as the information on which they are anchored. And, since the entire question of the information's validity is before the Court in these habeas corpus cases, I venture to say that the information isfatally defective, even under procedural law, because it charges more than one (1) offense (Sec. 13, Rule 110, Rules of Court). I submit then that it is not for this Court to energize a dead and, at best, fatally decrepit information by labelling or "baptizing" it differently from what it announces itself to be. The prosecution must file an entirely new and proper information, for this entire exercise to merit the serious consideration of the courts. ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest, and ORDER the information for rebellion complexed with murder and multiple frustrated murder in Criminal Case Nos. 90 -10941, RTC of Quezon City, DISMISSED. Consequently, the petitioners should be ordered permanently released and their bails cancelled. Paras, J., G.R. No. L-30642 April 30, 1985 PERFECTO S. FLORESCA, in his own behalf and on behalf of the minors ROMULO and NESTOR S. FLORESCA; and ERLINDA FLORESCAGABUYO, PEDRO S. FLORESCA, JR., CELSO S. FLORESCA, MELBA S. FLORESCA, JUDITH S. FLORESCA a nd CARMEN S. FLORESCA; LYDIA CARAMAT VDA. DE MARTINEZ in her own behalf and on behalf of her minor children LINDA, ROMEO, ANTONIO JEAN and ELY, all surnamed Martinez; and DANIEL MARTINEZ and TOMAS MARTINEZ; SALUSTIANA ASPIRAS VDA. DE OBRA, in her own behalf and on behalf of her minor children JOSE, ESTELA, JULITA SALUD and DANILO, all surnamed OBRA; LYDIA CULBENGAN VDA. DE VILLAR, in her own behalf and on behalf of her minor children EDNA, GEORGE and LARRY III, all surnamed VILLAR; DOLORES LOLITA ADER VDA. DE LANUZA, in her own behalf and on behalf of her minor children EDITHA, ELIZABETH, DIVINA, RAYMUNDO, NESTOR and AURELIO, JR. all surnamed LANUZA; EMERENCIANA JOSE VDA. DE ISLA, in her own behalf and on behalf of her minor children JOSE, LORENZO, JR., MARIA, VENUS and FELIX, all surnamed ISLA, petitioners, vs. PHILEX MINING CORPORATION and HON. JESUS P. MORFE, Presiding Judge of Branch XIII, Court of First Instance of Manila, respondents. Rodolfo C. Pacampara for petitioners. Tito M. Villaluna for respondents.
MAKASIAR, J.: This is a petition to review the order of the former Court of First Instance of Manila, Branch XIII, dated December 16, 1968 dismissing petitioners' complaint for damages on the ground of lack of jurisdiction. Petitioners are the heirs of the deceased employees of Philex Mining Corporation (hereinafter referred to as Philex), who, while working at its copper mines underground operations at Tuba, Benguet on June 28, 1967, died as a result of the cave-in that buried them in the tunnels of the mine. Specifically, the complaint alleges that Philex, in violation of government rules and regulations, negligently and deliberately failed to take the required precautions for the protection of the lives of its men working underground. Portion of the complaint reads: xxx xxx xxx 9. That for sometime prior and up to June 28,1967, the defendant PHILEX, with gross and reckless negligence and imprudence and deliberate failure to take the required precautions for the due protection of the lives of its men working underground at the time, and in utter violation of the laws and the rules and regulations duly promulgated by the Government pursuant thereto, allowed great amount of water and mud to accumulate in an open pit area at the mine above Block 43-S-1 which seeped through and saturated the 600 ft. column of broken ore and rock below it, thereby exerting tremendous pressure on the working spaces at its 4300 level, with the result that, on the said date, at about 4 o'clock in the afternoon, with the collapse of all underground supports due to such enormous pressure, approximately 500,000 cubic feet of broken ores rocks, mud and water, accompanied by surface boulders, blasted through the tunnels and flowed out and fi lled in, in a matter of approximately five (5) minutes, the underground workings, ripped timber supports and carried off materials, machines and equipment which blocked
all avenues of exit, thereby trapping within its tunnels of all its men above referred to, including those named in the next preceding paragraph, represented by the plaintiffs herein; 10. That out of the 48 mine workers who were then working at defendant PHILEX's mine on the said date, five (5) were able to escape from the terrifying holocaust; 22 were rescued within the next 7 days; and the rest, 21 in number, including those referred to in paragraph 7 hereinabove, were left mercil essly to their fate, notwithstanding the fact that up to then, a great many of them were still alive, entombed in the tunnels of the mine, but were not rescued due to defendant PHILEX's decision to abandon rescue operations, in utter disregard of its bounden legal and moral duties in the premises; xxx xxx xxx 13. That defendant PHILEX not only violated the law and the rules and regulations duly promulgated by the duly constituted authorities as set out by the Special Committee above referred to, in their Report of investigation, pages 7-13, Annex 'B' hereof, but also failed completely to provide its men working underground the necessary security for the protection of their lives notwithstanding the fact that it had vast financial resources, it having made, during the year 1966 alone, a total operating income of P 38,220,254.00, or net earnings, after taxes of P19,117,394.00, as per its llth Annual Report for the year ended December 31, 1966, and with aggregate assets totalling P 45,794,103.00 as of December 31, 1966; xxx xxx xxx (pp. 42-44, rec.) A motion to dismiss dated May 14, 1968 was filed by Philex alleging that the causes of action of petitioners based on an industrial accident are covered by the provisions of the Workmen's Compensation Act (Act 3428, as amended by RA 772) and that the former Court of First Instance has no jurisdiction over the case. Petitioners filed an opposition dated May 27, 1968 to the said motion to dismiss claiming that the causes of action are not based on the provisions of the Workmen's Compensation Act but on the provisions of the Civil Code allowing the award of actual, moral and exemplary damages, particularly: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre- existing contractual relation between the parties, is called a quasidelict and is governed by the provisions of this Chapter. Art. 2178. The provisions of articles 1172 to 1174 are also applicable to a quasi-delict. (b) Art. 1173 — The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and 2201, paragraph 2 shall apply. Art. 2201. x x x x x x x x x In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation. Art. 2231. In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence. After a reply and a rejoinder thereto were filed, respondent Judge issued an order dated June 27, 1968 dismissing the case on the ground that it falls within the exclusive jurisdiction of the Workmen's Compensation Commission. On petitioners' motion for reconsideration of the said order, respondent Judge, on September 23, 1968, reconsidered and set aside his order of June 27, 1968 and allowed Philex to file an answer to the complaint. Philex moved to reconsider the aforesaid order which was opposed by petitioners. On December 16, 1968, respondent Judge dismissed the case for lack of jurisdiction and ruled that in accordance with the established jurisprudence, the Workmen's Compensation Commission has exclusive original jurisdiction over damage or compensation claims for work-connected deaths or injuries of workmen or employees, irrespective of whether or not the employer was negligent, adding that if the employer's negligence results in work-connected deaths or injuries, the employer shall, pursuant to Section 4-A of the Workmen's Compensation Act, pay additional compensation equal to 50% of the compensation fixed in the Act. Petitioners thus filed the present petition. In their brief, petitioners raised the following assignment of errors: I THE LOWER COURT ERRED IN DISMISSING THE PLAINTIFFS- PETITIONERS' COMPLAINT FOR LACK OF JURISDICTION. II THE LOWER COURT ERRED IN FAILING TO CONSIDER THE CLEAR DISTINCTION BETWEEN CLAIMS FOR DAMAGES UNDER THE CIVIL CODE AND CLAIMS FOR COMPENSATION UNDER THE WORKMEN'S COMPENSATION ACT. A In the first assignment of error, petitioners argue that the lower court has jurisdiction over the cause of action since the complaint is based on the provisions of the Civil Code on damages, particularly Articles 2176, 2178, 1173, 2201 and 2231, and not on the provisions of the Workmen's Compensation Act. They point out that the complaint alleges gross and brazen negligence on the part of Philex in failing to take the necessary security for the protection of the lives of its employees working underground. They also assert that since Philex opted to file a motion to dismiss in the court a quo, the allegations in their complaint including those contained in the annexes are deemed admitted. In the second assignment of error, petitioners asseverate that respondent Judge failed to see the distinction between the claims for compensation under the Workmen's Compensation Act and the claims for damages based on gross negligence of Philex under the Civil Code. They point out that workmen's compensation refers to liability for compensation for loss resulting from injury, disability or death of the working man through industrial accident or disease, without regard to the fault or negligence of the employer, while the claim for damages under the Civil Code which petitioners pursued in the regular court, refers to the employer's liability for reckless and wanton negligence resulting in the death of the employees and for which the regular court has jurisdiction to adjudicate the same. On the other hand, Philex asserts that work-connected injuries are compensable exclusively under the provisions of Sections 5 and 46 of the Workmen's Compensation Act, which read: SEC. 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 ... SEC. 46. Jurisdiction. — The Workmen's Compensation Commissioner shall have exclusive jurisdiction to hear and decide claims for compensation under the Workmen's Compensation Act, subject to appeal to the Supreme Court, ... Philex cites the case of Manalo vs. Foster Wheeler (98 Phil. 855 [1956]) where it was held that "all claims of workmen against their employer for damages due to accident suffered in the course of employment shall be investigated and adjudicated by the Workmen's Compensation Commission," subject to appeal to the Supreme Court. Philex maintains that the fact that an employer was negligent, does not remove the case from the exclusive character of recoveries under the Workmen's Compensation Act; because Section 4-A of the Act provides an additional compensation in case the employer fails to comply with the re quirements of safety as imposed by law to prevent accidents. In fact, it points out that Philex voluntarily paid the compensation due the petitioners and all the payments have been accepted in behalf of the
deceased miners, except the heirs of Nazarito Floresca who insisted that they are entitled to a greater amount of damages under the Civil Code. In the hearing of this case, then Undersecretary of Labor Israel Bocobo, then Atty. Edgardo Angara, now President of the University of the Philippines, Justice Manuel Lazaro, as corporate counsel and Assistant General Manager of the GSIS Legal Affairs Department, and Commissioner on Elections, formerly UP Law Center Director Froilan Bacungan, appeared as amici curiae and thereafter, submitted their respective memoranda. The issue to be resolved as WE stated in the resolution of November 26, 1976, is: Whether the action of an injured employee or worker or that of his heirs in case of his death under the Workmen's Compensation Act is exclusive, selective or cumulative, that is to say, whether his or his heirs' action is exclusively restricted to seek ing the limited compensation provided under the Workmen's Compensation Act or whether they have a right of selection or choice of action between availing 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/or exemplary) from the employer by vi rtue of negligence (or fault) of the employer or of his other employees or whether they may avail 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. There are divergent opinions in this case. Justice Lazaro is of the opinion that an injured employee or worker, or the heirs in case of his death, may initiate a complaint to recover damages (not compensation under the Workmen's Compensation Act) with the regular court on the basis of negligence of an employer pursuant to the Civil Code provisions. Atty. Angara believes otherwise. He submits that the remedy of an injured employee for work-connected injury or accident is exclusive in accordance with Section 5 of the Workmen's Compensation Act, while Atty. Bacungan's position is that the action is selective. He opines that the heirs of the employee in case of his death have a right of choice to avail themselves of the benefits provided under the Workmen's Compensation Act or to sue in the regular court under the Civil Code for higher damages from the employer by virtue of negligence of the latter. Atty. Bocobo's stand is the same as that of Atty. Bacungan and adds that once the heirs elect the remedy provided for under the Act, they are no longer entitled to avail themselves of the remedy provided for under the Civil Code by filing an action for higher damages in the regular court, and vice versa. On August 3, 1978, petitioners-heirs of deceased employee Nazarito Floresca filed a motion to dismiss on the ground that they have amicably settled their claim with respondent Philex. In the resolution of September 7, 1978, WE dismissed the petition only insofar as the aforesaid petitioners are connected, it appearing that there are other petitioners in this case. WE hold that the former Court of First Instance has jurisdiction to try the case, It should be underscored that petitioners' complaint is not for compensation based on the Workmen's Compensation Act but a complaint for damages (actual, exemplary and moral) i n the total amount of eight hundred twenty-five thousand (P825,000.00) pesos. Petitioners did not invoke the provisions of the Workmen's Compensation Act to entitle them to compensation thereunder. In fact, no allegation appeared in the complaint that the employees died from accident arising out of and in the course of their employments. The complaint instead alleges gross and reckless negligence and deliberate failure on the part of Philex to protect the lives of its workers as a consequence of which a cave-in occurred resulting in the death of the employees working underground. Settled is the rule that in ascertaining whether or not the cause of action is in the nature of workmen's compensation claim or a claim for damages pursuant to the provisions of the Civil Code, the test is the averments or allegations in the complaint (Belandres vs. Lopez Sugar Mill, Co., Inc., 97 Phil. 100). In the present case, there exists between Philex and the deceased employees a contractual relationship. The alleged gross and reckless negligence and deliberate failure that amount to bad faith on the part of Philex, constitute a breach of contract for which it may be held liable for damages. The provisions of the Civil Code on cases of breach of contract when there is fraud or bad faith, read: Art. 2232. In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is able shall be those that are the natural and probable consequences of the breach of the obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted. In cases of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation. Furthermore, Articles 2216 et seq., Civil Code, allow the payment of all kinds of damages, as assessed by the court. The rationale in awarding compensation under the Workmen's Compensation Act differs from that in giving damages under the Civil Code. The compensation acts are based on a theory of compensation distinct from the existing theories of damages, payments under the acts being made as compensation and not as damages (99 C.J.S. 53). Compensation is given to mitigate the harshness and insecurity of industrial life for the workman and his family. Hence, an employer is liable whether negligence exists or not since liability is created by law. Recovery under the Act is not based on any theory of actionable wrong on the part of the employer (99 C.J.S. 36). In other words, under the compensation acts, the employer is liable to pay compensation benefits for loss of income, as long as the death, sickness or injury is work-connected or work-aggravated, even if the death or injury is not due to the fault of the employer (Murillo vs. Mendoza, 66 Phil. 689). On the other hand, damages are awarded to one as a vindication of the wrongful invasion of his rights. It is the indemnity recoverable by a person who has sustained injury either in his person, property or relative rights, through the act or default of another (25 C.J.S. 452). The claimant for damages under the Civil Code has the burden of proving the causal relation between the defendant's negligence and the resulting injury as well as the damages suffered. While under the Workmen's Compensation Act, there is a presumption in favor of the deceased or injured employee that the death or injury is work-connected or work-aggravated; and the employer has the burden to prove otherwise (De los Angeles vs. GSIS, 94 SCRA 308; Carino vs. WCC, 93 SCRA 551; Maria Cristina Fertilizer Corp. vs. WCC, 60 SCRA 228). The claim of petitioners that the case is not cognizable by the Workmen's Compensation Commission then, now Employees Compensation Commission, is strengthened by the fact that unlike in the Civil Code, the Workmen's Compensation Act did not contain any provision for an award of actual, moral and exemplary damages. What the Act provided was merely the right of the heirs to claim limited compensation for the death in the amount of six thousand (P6,000.00) pesos plus buri al expenses of two hundred (P200.00) pesos, and medical expenses when incurred (Sections 8, 12 and 13, Workmen's Compensation Act), and an additional compensation of only 50% if the complaint alleges failure on the part of the employer to "install and maintain safety appliances or to take other precautions for the prevention of accident or occupational disease" (Section 4-A, Ibid.). In the case at bar, the amount sought to be recovered is over and above that which was provided under the Workmen's Compensation Act and which cannot be granted by the Commission. Moreover, under the Workmen's Compensation Act, compensation benefits should be paid to an employee who suffered an accident not due to the facilities or lack of facilities in the industry of his employer but caused by factors outside the industrial plant of his employer. Under the Civil Code, the liability of the employer, depends on breach of contract or tort. The Workmen's Compensation Act was specifically enacted to afford protection to the employees or workmen. It is a social legislation designed
to give relief to the workman who has been the victim of an accident causing his death or ailment or injury in the pursuit of his employment (Abong vs. WCC, 54 SCRA 379). 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 that 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 Pacana 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. In Pacaña WE said: In the analogous case of Esguerra vs. Munoz Palma, involving the application of Section 6 of the Workmen's Compensation Act on the injured workers' right to sue third- party tortfeasors in the regular courts, Mr. Justice J.B.L. Reyes, again speaking for the Court, pointed out that the injured worker has the choice of remedies but cannot pursue both courses of action simultaneously and thus balanced the relative advantage of recourse under the Workmen's Compensation Act as against an ordinary action. As applied to this case, petitioner Esguerra cannot maintain his action for damages against the respondents (defendants below), because he has elected to seek compensation under the Workmen's Compensation Law, and his claim (case No. 44549 of the Compensation Commission) was being processed at the time he filed this action in the Court of First Instance. It is argued for petitioner that as the damages recoverable under the Civil Code are much more extensive than the amounts that may be awarded under the Workmen's Compensation Act, they should not be deemed incompatible. As already indicated, the injured laborer was initially free to choose either to recover from the employer the fixed amounts set by the Compensation Law or else, to prosecute an ordinary civil action against the tortfeasor for higher damages. While perhaps not as profitable, the smaller indemnity obtainable by the first course is balanced by the claimant's being relieved of the burden of proving the causal connection between the defendant's negligence and the resulting injury, and of having to establish the extent of the damage suffered; issues that are apt to be troublesome to establish satisfactorily. Having staked his fortunes on a particular remedy, petitioner is precluded from pursuing the alternate course, at least until the prior claim is rejected by the Compensation Commission. Anyway, under the proviso of Section 6 aforequoted, if the employer Franklin Baker Company recovers, by derivative action against the alleged tortfeasors, a sum greater than the compensation he may have paid the herein petitioner, the excess accrues to the latter. Although the doctrine in the case of Esguerra vs. Munoz Palma (104 Phil. 582), applies to third-party tortfeasor, said rule should likewise apply to the employer-tortfeasor. Insofar as the heirs of Nazarito Floresca are concerned, as already stated, the petition has been dismissed in the resolution of September 7, 1978 in view of the amicable settlement reached by Philex and the said heirs. 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 Martinez 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 (pp. 106-107, rec.). Such allegation was admitted by herein petitioners in their opposition to the motion to dismiss dated May 27, 1968 (pp. 121-122, rec.) 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 the then Executive Secretary Rafael Salas in a letter dated October 19, 1967 only (p. 76, rec.). 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. B Contrary to the perception of the dissenting opinion, the Court does not legislate in the instant case. The Court merely applies and gives effect to the constitutional guarantees of social justice then secured by Section 5 of Article 11 and Section 6 of Article XIV of the 1935 Constitution, and now by Sections 6, 7, and 9 of Article 11 of the DECLARATION OF PRINCIPLES AND STATE POLICIES of the 1973 Constitution, as amended, and as implemented by Articles 2176, 2177, 2178, 1173, 2201, 2216, 2231 and 2232 of the New Civil Code of 1950. To emphasize, the 1935 Constitution declares that: Sec. 5. The promotion of social justice to insure the well-being and economic security of all the people should be the concern of the State (Art. II). Sec. 6. The State shall afford protection to labor, especially to working women, and minors, and shall regulate the relations between landowner and tenant, and between labor and capital in industry and in agriculture. The State may provide for compulsory arbitration (Art. XIV). The 1973 Constitution likewise commands the State to "promote social justice to insure the dignity, welfare, and security of all the people "... regulate the use ... and disposition of private property and equitably diffuse property ownership and profits "establish, maintain and ensure adequate social services in, the field of education, health, housing, employment, welfare and social security to guarantee the enjoyment by the people of a decent standard of living" (Sections 6 and 7, Art. II, 1973 Constitution); "... afford protection to labor, ... and regulate the relations between workers and employers ..., and assure the rights of workers to ... just and humane conditions of work" (Sec. 9, Art. II , 1973 Constitution, emphasis supplied). The foregoing constitutional guarantees in favor of labor institutionalized in Section 9 of Article 11 of the 1973 Constituti on and restated as a declaration of basic policy in Article 3 of the New Labor Code, thus: Art. 3. Declaration of basic policy. — The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed, and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work. (emphasis supplied). The aforestated constitutional principles as implemented by the aforementioned articles of the New Civil Code cannot be impliedly repealed by the restrictive provisions of Article 173 of the New Labor Code. Section 5 of the Workmen's Compensation Act (before it was amended by R.A. No. 772 on June 20, 1952), predecessor of Article 173 of the New Labor Code, has been superseded by the aforestated provisions of the New Civil Code, a subsequent law, which took effect on August 30, 1950, which
obey the constitutional mandates of social justice enhancing as they do the rights of the workers as against their employers. Article 173 of the New Labor Code seems to diminish the rights of the workers and therefore collides with the social justice guarantee of the Constitution and the liberal provisions of the New Civil Code. The guarantees of social justice embodied in Sections 6, 7 and 9 of Article II of the 1973 Constitution are statements of legal principles to be applied and enforced by the courts. Mr. Justice Robert Jackson in the case of West Virginia State Board of Education vs. Barnette, with characteristic eloquence, enunciated: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a fr ee press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections (319 U.S. 625, 638, 87 L.ed. 1638, emphasis supplied). In case of any doubt which may be engendered by Article 173 of the New Labor Code, both the New Labor Code and the Civil Code direct that the doubts should be resolved i n favor of the workers and employees. Thus, Article 4 of the New Labor Code, otherwise known as Presidential Decree No. 442, as amended, promulgated on May 1, 1974, but which took effect six months thereafter, provides that "all doubts in the implementation and interpretation of the provisions of this Code, including its implementing i mplementing rules and regulations, shall be resolved in favor of labor" (Art. 2, Labor Code). Article 10 of the New Civil Code states: "In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. " More specifically, Article 1702 of the New Civil Code likewise directs that. "In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living of the laborer." Before it was amended by Commonwealth Act No. 772 on June 20, 1952, Section 5 of the Workmen's Compensation Act provided: Sec. 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 (emphasis supplied). Employers contracting laborecsrs in the Philippine Islands for work outside the same may stipulate with such laborers that the remedies prescribed by this Act shall apply exclusively to injuries received outside the Islands through accidents happening in and during the performance of the duties of the employment; and all service contracts made in the manner prescribed in this section shall be presumed to include such agreement. Only the second paragraph of Section Sec tion 5 of the Workmen's Compensation Act No. 3428, was amended by Commonwealth Act No. 772 on June 20, 1952, thus: Sec. 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. i njury. Employers contracting laborers in the Philippine Islands for work outside the same shall stipulate with such laborers that the remedies prescribed by this Act shall apply to i njuries received outside the Island through accidents happening in and during the performance of the duties of the employment. Such stipulation shall not prejudice the right of the laborers to the benefits of the Workmen's Compensation Law of the place where the accident occurs, should such law be more favorable to them (As amended by section 5 of Republic Act No. 772). Article 173 of the New Labor Code does not repeal expressly nor impliedly the applicable provisions of the New Civil Code, because said Article 173 provides: Art. 173. Exclusiveness 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 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, Commonwealth Act Numbered One hundred eighty- six, as amended, Commonwealth 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 during the period of such payment for the same disability or death, and conversely (emphasis supplied). As above-quoted, Article 173 of the New Labor Code expressly repealed only Section 699 of the Revised Administrative Code, R.A. No. 1161, as amended, C.A. No. 186, as amended, R.A. No. 610, as amended, R.A. No. 4864, as amended, and all other laws whose benefits are administered by the System (referring to the GSIS or SSS). Unlike Section 5 of the Workmen's Compensation Act as aforequoted, Article 173 of the New Labor Code does not even remotely, much less expressly, repeal the New Ci vil Code provisions heretofore quoted. It is patent, therefore, that recovery under the New Civil Code for damages arising from negligence, is not barred by Article 173 of the New Labor Code. And the damages recoverable under the New Civil Code are not administered by the System provided for by the New Labor Code, which defines the "System" as referring to the Government Service Insurance System or the Social Security System (Art. 167 [c], [d] and [e] of the New Labor Code). Furthermore, under Article 8 of the New Civil Code, decisions of the Supreme Court form part of the law of the land. Article 8 of the New Civil Code provides: Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. The Court, through the late Chief Justice Fred Ruiz Castro, in People vs. Licera ruled: 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 l aw 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" (65 SCRA 270, 272-273 [1975]). WE ruled that judicial decisions of the Supreme Court assume the same authority as the statute itself (Caltex vs. Palomer, 18 SCRA 247; 124 Phil. 763). The aforequoted provisions of Section 5 of the Workmen's Compensation Act, before and after it was amended by Commonwealth Act No. 772 on June 20, 1952, limited the right of recovery in favor of the deceased, ailing or injured employee to the compensation provided for therein. Said Section 5 was not accorded controlling application by the Supreme Court in the 1970 case of Pacana vs. Cebu Autobus Company (32 SCRA 442) when WE ruled that an i njured worker has a choice of either to recover from the employer the fixed amount set by the Workmen's Compensation Act or to prosecute an ordinary civil action against the tortfeasor for greater damages; but he cannot pursue both courses of action simultaneously. Said Pacana case penned by Mr. Justice Teehankee, applied Article 1711 of the Civil Code as against the Workmen's Compensation Act, reiterating the 1969 ruling in the case of Valencia vs. Manila Yacht Club (28 SCRA 724, June 30,1969) and the 1958 case of
Esguerra vs. Munoz Palma (104 Phil. 582), both penned by Justice J.B.L. Reyes. Said Pacana case was concurred in by Justices J.B.L. Reyes, Dizon, Makalintal, Zaldivar, Castro, Fernando and Villamor. Since the first sentence of Article 173 of the New Labor Code is merely a re-statement of the first paragraph of Section 5 of the Workmen's Compensation Act, as amended, and does not even refer, neither expressly nor impliedly, to the Civil Code as Section 5 of the Workmen's Compensation Act did, with greater reason said Article 173 must be subject to the same interpretation adopted adopted in the cases of Pacana, Valencia and Esguerra aforementioned as the doctrine in the aforesaid three (3 ) cases is faithful to and advances the social justice guarantees enshrined in both the 1935 and 1973 Constitutions. Constitutions. It should be stressed likewise that there is no similar provision on social justice in the American Federal Constitution, nor in the various state constitutions of the American Union. Consequently, the restrictive nature of the American decisions on the Workmen's Compensation Compensation Act cannot limit li mit the range and compass of OUR interpretation of our own laws, especially Article 1711 of the New Civil Code, vis-a-vis Article 173 of the New Labor Code, in relation to Section 5 of Article II and Sectio n 6 of Article XIV XI V of the 1935 Constitution then, and now Sections 6, 7 and 9 of the Declaration of Principles and State Policies of Article II of the 1973 Constitution. The dissent seems to subordinate the life of the laborer to the property rights of the employer. The right to life is guaranteed specifically by the due process clause of the Constitution. To relieve the employer from liability for the death of his workers arising from his gross or wanton fault or failure to provide safety devices for the protection of his employees or workers against the dangers which are inherent in underground mining, is to deprive the deceased worker and his heirs of the right to recover indemnity for the loss of the life of the worker and the consequent loss to his family without due process of law. The dissent in effect condones and therefore encourages such gross or wanton neglect on the part of the employer to comply with his legal obligation to provide safety measures for the protection of the life, limb and health of his worker. Even from the moral viewpoint alone, such attitude is un-Christian. It is therefore patent that giving effect to the social justice guarantees of the Constitution, as implemented by the provisions of the New Civil Code, is not an exercise of the power of law-making, but is rendering obedience to the mandates of the fundamental fundamental law and the implementing legislation aforementioned. The Court, to repeat, is not legislating le gislating in the instant case. It is axiomatic that no ordinary statute can override a constitutional provision. The words of Section 5 of the Workmen's Compensation Act and of Article 173 of the New Labor Code subvert the rights of the petitioners as surviving heirs of the deceased mining employees. Section 5 of the Workmen's Compensation Act and Article 173 of the New Labor Code are retrogressive; because they are a throwback to the obsolete laissez-faire doctrine of Adam Smith enunciated in 1776 in his treatise Wealth of Nations (Collier's Encyclopedia, Vol. 21, p. 93, 1964), which has been discarded soon after the close of the 18th century due to the Industrial Revolution that generated the machines and other mechanical devices (beginning with Eli Whitney's cotton gin of 1793 and Robert Fulton's steamboat of 1807) for production and transportation which are dangerous to life, limb and health. The old socio-political-economic philosophy of live-and-let-live is now superdesed by the benign Christian shibboleth of live-and-help others to live. Those who profess to be Christians should not adhere to Cain's selfish affirmation that he is not his brother's keeper. In this our civilization, each one of us is our brother's keeper. No man is an island. To assert otherwise is to be as atavistic and ante-deluvian as the 1837 case of Prisley vs. Fowler (3 MN 1,150 reprint 1030) invoked by the dissent, The Prisley case was decided in 1837 during the era of economic royalists and robber barons of America. Only ruthless, unfeeling capitalistics and egoistic reactionaries continue to pay obeisance to such un-Christian doctrine. The Prisley rule humiliates man and debases him; because the decision derisively refers to the lowly worker as "servant" and utilizes with aristocratic arrogance "master" for "employer." It robs man of his inherent dignity and dehumanizes him. To stress this affront to human dignity, WE only have to restate the quotation from Prisley, thus: "The mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do himself." This is the very selfish doctrine that provoked the American Civil War which generated so much hatred and drew so much precious blood on American plains and valleys from 1861 to 1864. "Idolatrous reverence" for the letter of the law sacrifices the human being. The spirit of the law insures man's survival and ennobles him. In the words of Shakespeare, "the letter of the law killeth; its spirit giveth life." C It is curious that the di ssenting opinion clings to the myth that the c ourts cannot legislate. That myth had been exploded by Article 9 of the New Civil Code, which provides that "No judge or court shall decline to render judgment by reason of the the silence, obscurity obscurity or insufficiency of of the laws. " Hence, even the legislator himself, through Article 9 of the New Civil Code, recognizes that in certain instances, the court, in the language of Justice Holmes, "do and must must legislate" to fill in the gaps in the law; because the mind of the legislator, like all human beings, is finite and therefore cannot envisage all possible cases to which the law may apply Nor has the human mind the infini te capacity to anticipate all situations. si tuations. But about two centuries before Article 9 of the New Civil Code, the founding fathers of the American Constitution foresaw and recognized the eventuality that the courts may have to legislate to supply the omissions or to clarify the ambiguities in the American Constitution and the statutes. 'Thus, Alexander Hamilton pragmatically admits that judicial legislation may be justified but denies that the power of the Judiciary to nullify statutes may give rise to Judicial tyranny (The Federalist, Modern Library, pp. 503-511, 1937 ed.). Thomas Jefferson went farther to concede that the court is even independent of the Nation itself (A.F.L. vs. American Sash Company, 1949 335 US 538). Many of the great expounders of the American Constitution Constitution likewise share the same view. Chief Justice Marshall pronounced: "It is emphatically the province and duty of the Judicial department to say what the law is (Marbury vs. Madison I Cranch 127 1803), which was re-stated by Chief Justice Hughes when he said that "the Constitution is what the judge says it is (Address on May 3, 1907, quoted by President Franklin Delano Roosevelt R oosevelt on March 9, 1937). This was reiterated by Justice Cardozo who pronounced that "No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law. " (The Nature of the Judicial Process, p. 113). In the language of Chief Justice Harlan F. Stone, "The only limit to the judicial legislation is the restraint of the judge" (U.S. vs. Butler 297 U.S. 1 Dissenting Opinion, p. 79), which view is also entertained by Justice Frankfurter and Justice Robert Jackson. In the rhetoric of Justice Frankfurter, "the courts breathe life, feeble or strong, into the inert pages of the Constitution and all statute books." It should be stressed that the liability of the employer under Section 5 of the Workmen's Compensation Act or Article 173 of the New Labor Code is limited to death, ailment or injury caused by the nature of the work, without any fault on the part of the employers. It is correctly termed no fault liability. Section 5 of the Workmen's Compensation Act, as amended, or Article 173 of the New Labor Code, does not cover the tortious liability of the employer occasioned by his fault or culpable negligence in failing to provide the safety devices required by the law for the protection of the life, limb and health of the workers. Under either Section 5 or Article 173, the employer remains liable to pay compensation benefits to the employee whose death, ailment or injury is work-connected, even if the employer has faithfully and diligently furnished all the safety measures and contrivances decreed by the law to protect the employee.
The written word is no longer the "sovereign talisman." In the epigrammatic language of Mr. Justice Cardozo, "the law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal" (Wood vs. Duff Gordon 222 NW 88; Cardozo, The Nature of the Judicial Process 100). Justice Cardozo warned that: "Sometimes the conservatism of judges has threatened for an interval to rob the legislation of its efficacy. ... Precedents established in those items exert an unhappy influence even now" (citing Pound, Common Law and Legislation 21 Harvard Law Review 383, 387). Finally, Justice Holmes delivered the coup de grace when he pragmatically admitted, although with a cautionary undertone: "that judges do and must legislate, but they can do so only interstitially they are confined from molar to molecular motions" (Southern Pacific Company vs. Jensen, 244 US 204 1917). And in the subsequent case of Springer vs. Government (277 US 188, 210-212, 72 L.ed. 845, 852- 853), Justice Holmes pronounced: The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. x x x. When we come to the fundamental fundamental distinctions it is still more obvious that they must be received with a certain latitude or our government could not go on. To make a rule of conduct applicable to an individual who but for such action would be free from it is to legislate yet it is what the judges do whenever they determine which of two competing principles of policy shall prevail. xxx xxx xxx It does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into waterlight compartments, compartments, were it ever e ver so desirable to do so, which I am far from fr om believing that it is, i s, or that the Constitution requires. True, there are jurists and legal writers who affirm that judges should not legislate, but grudgingly concede that in certain cases judges do legislate. They criticize the assumpt assumption ion by the courts of such law-making power as dangerous for it may degenerate into Judicial tyranny. tyranny . They include Blackstone, Jeremy Bentham, Justice Black, Justice Harlan, Justice Roberts, Justice David Brewer, Ronald Dworkin, Rolf Sartorious, Macklin Fleming and Beryl Harold Levy. But said Justices, jurists or legal commentators, who either deny the power of the courts to legislate in-between gaps of the law, or decry the exercise of such power, have not pointed to examples of the exercise e xercise by the courts of such law-making authority in the interpretation and application of the laws in specific cases that gave rise to judicial tyranny or oppression or that such judicial legislation has not protected public interest or individual welfare, particularly the lowly workers or the underprivileged. On the other hand, there are numerous decisions interpreting the Bil l of Rights and statutory enactments expanding the scope of such provisions to protect human rights. Foremost among them is the doctrine in the cases of Miranda vs. Arizona (384 US 436 1964), Gideon vs. Wainright (372 US 335), Escubedo vs. Illinois (378 US 478), which guaranteed the accused under custodial investigation his rights to remain silent and to counsel and to be informed of such rights as even as it protects him a gainst the use of force or intimidation to extort confession from him. These rights are not found in the American Bill of Rights. These righ ts are now institutionalized in Section 20, Article IV I V of the 1973 Constitution. Only the peace-and-order adherents were critical of the activism of the American Supreme Court led by Chief Justice Earl Warren. Even the definition of Identical offenses for purposes of the double jeopardy provision was developed by American judicial decisions, not by amendment to the Bill of Rights on double jeopardy (see Justice Laurel in People vs. Tarok, 73 Phil. 260, 261-268). And these judicial decisions have been re-stated in Section 7 of Rule 117 of the 1985 Rules on Criminal Procedure, as well as in Section 9 of Rule 117 of the 1964 Revised Rules of Court. In both provisions, the second offense is the same as the first offense if the second offense is an attempt to commit the first or frustration thereof or necessarily includes or is necessarily included in the first offense. The requisites of double jeopardy are not spelled out in the Bill of Rights. They were also developed by judicial decisions in the United States and in the Philippines even before people vs. Ylagan (58 Phil. 851 -853). Again, the equal protection clause was interpreted in the case of Plessy vs. Ferguson (163 US 537) as securing to the Negroes equal but separate facilities, which doctrine was revoked in the case of Brown vs. Maryland Board of Education (349 US 294), holding that the equal protection clause means that the Negroes are entitled to attend the same schools attended by the whites-equal facilities in the same school-which was extended to public parks and public buses. De-segregation, not segregation, is now the governing principle. Among other examples, the due process clause was interpreted in the case of People vs. Pomar (46 Phil. 440) by a conservative, capitalistic court to invalidate a law granting maternity leave to working women-according primacy to property rights over human rights. The case of People vs. Pomar is no longer the rule. As early as 1904, in the case of Lochner vs. New York (198 US 45, 76, 49 L. ed. 937, 949), Justice Holmes had been railing against the conservatism of Judges perverting the guarantee of due process to protect property rights as against human rights or social justice for the working man. The law fixing maximum maximum hours of labor was invalidated. Justice Justice Holmes was vindicated finally in 1936 in the case of West Coast Hotel vs. Parish (300 US 377-79; 81 L. ed. 703) where the American Supreme Court upheld the rights of workers to social justice in the form of guaranteed minimum wage for women and minors, working hours not exceeding eight (8) daily, and maternity leave for women employees. The power of judicial review and the principle of separation of powers as well as the rule on political questions have been evolved and grafted into the American Constitution by judicial decisions (Marbury vs. Madison, supra Coleman vs. Miller, 307 US 433, 83 L. ed. 1385; Springer S pringer vs. Government, 277 US 210-212, 72 L. ed. 852, 853). It is noteworthy that Justice Black, who seems to be against judicial legislation, penned a separate concurring opinion in the case of Coleman vs. Miller, supra, affirming the doctrine of political question as beyond the ambit of judicial review. There is nothing in both the American and Philippine Constitutions expressly providing that the power of the courts is limited by the principle of separation of powers and the doctrine on political questions. There are numerous cases in Philippine jurisprudence applying the doctrines of separation of powers and political questions and invoking American precedents. Unlike the American Constitution, both the 1935 and 1973 Philippine Constitutions expressly vest in the Supreme Court the power to review the validity or constitutionality of any legislative enactment or executive act. WHEREFORE, THE TRIAL COURT'S ORDER OF DISMISSAL IS HEREBY REVERSED AND SET ASIDE AND THE CASE IS REMANDED TO IT FOR FURTHER PROCEEDINGS. SHOULD A GREATER AMOUNT OF DAMAGES BE DECREED IN FAVOR OF HEREIN PETITIONERS, THE PAYMENTS ALREADY MADE TO THEM PURSUANT PURSUANT TO THE WORKMEN'S COMPENSATION ACT SHALL BE DEDUCTED. NO COSTS. SO ORDERED. Fernando, C.J., Teehankee, Plana, Plana, Escolin, De la Fuente, Cuevas and Alampay JJ., concur. Concepcion, Jr., J., is on leave. Abad Santos and Relova, JJ., took no part. Separate Opinions MELENCIO-HERRERA, MELENCIO-HERRERA, J., dissenting: A
This case involves a complaint for damages for the death of five employees of PHILEX Mining Corporation under the general provisions of the Civil Code. The Civil Code itself, however, provides for its non-applicability to the complaint. It is specifically provided in Article 2196 of the Code, found in Title XVIII-Damages that: COMPENSATION FOR WORKMEN AND OTHER EMPLOYEES IN CASE OF DEATH, INJURY OR ILLNESS IS REGULATED BY SPECIAL LAWS. Compensation and damages are synonymous. In Esguerra vs. Muñoz Palma, etc., et al., 104 Phil. 582, 586, Justice J.B.L. Reyes had said: Petitioner also avers that compensation is not damages. This argument is but a play on words. The term compensation' is used in the law (Act 3812 and Republic Act 772) in the sense of indemnity for damages suffered, being awarded for a personal injury caused or aggravated by or in the course of employment. ... By the very provisions of the Civil Code, it is a "special law", not the Code itself, which has to apply to the complaint involved in the instant case. That "special law", in reference to the complaint, can be no other than the Workmen's Compensation Even assuming, without conceding, that an employee is entitled to an election of remedies, as the majority rules, both options cannot be exercised simultaneously, and the exercise of one will preclude the exercise of the other. The petitioners had already exercised their option to come under the Workmen's Compensation Act, and they have already received compensation payable to them under that Act. Stated differently, the r emedy under the Workmen's Compensation Act had already become a "finished transaction". There are two considerations why it is believed petitioners should no longer be allowed to exercise the option to sue under the Civil Code. In the first place, the proceedings under the Workmen's Compensation Act have already become the law in regards to" the "election of remedies", because those proceedings had become a "finished transaction". In the second place, it should be plainly equitable that, if a person entitled to an "election of remedies" makes a first election and accepts the benefits thereof, he should no longer be allowed to avail himself of the second option. At the very least, if he wants to make a second election, in disregard of the first election he has made, when he makes the second election he should surrender the benefits he had obtained under the first election, This was not done in the case before the Court. B. 'There is full concurrence on my part with the dissenting opinion of Mr. Justice Gutierrez upholding "the exclusory provision of the Workmen's Compensation Act." I may further add: 1. The Workmen's Compensation Act (Act No. 3428) was approved on December 10, 1927 and took effect on June 10, 1928. It was patterned from Minnesota and Hawaii statutes. Act No. 3428 was adopted by the Philippine legislature, in Spanish and some sections of the law were taken from the statutes of Minnesota and Hawaii, (Chapter 209 of the Revised Laws of Hawaii, 1925). [Morabe & Inton, Workmen's Compensation Act, p. 2] Under the Workmen's Compensation Act of Hawaii, when the Act is applicable, the remedy under the Act is exclusive The following is stated in 1 Schneider Workmen's Compensation Text, pp. 266, 267. Sec. 112. Hawaii Statutory Synopsis. The act is compulsory as to employees in 'all industrial employment' and employees of the territory and its political subdivisions. (Sections 7480-7481, S.S., Vol. 1, p. 713.) Compensation is not payable when injury is due to employee's willful intention to injure himself or another or to his intoxication. (Sec. 7482, S.S., p. 713.) When the act is applicable the remedy thereunder is exclusive (Sec. 7483, S.S., p. 714.) 2. In providing for exclusiveness of the remedy under our Workmen's Compensation Act, the Philippine Legislature worded the f irst paragraph of Section 5 of the Act as follows: SEC. 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 (Paragraphing and emphasis supplied) In regards to the intent of the Legislature under the foregoing provision: A cardinal rule in the interpretation of statutes is that the meaning and intention of the law-making body must be sought, first of all in the words of the statute itself, read and considered in their natural, ordinary, commonly-accepted and most obvious significations, according to good and approved usage and without resorting to forced or subtle construction Courts, therefore, as a rule, cannot presume that the law-making body does not know the meaning of words and the rules of grammar. Consequently, the grammatical reading of a statute must be presumed to yield its correct sense. (Espino vs. Cleofe 52 SCRA 92, 98) [Italics supplied] 3. The original second paragraph of Section 5 provided: Employers contracting laborers in the Philippine Islands for work outside the same shall stipulate with such laborers that the remedies prescribed by this Act shall apply exclusively to injuries received outside the Islands through accidents happening in and during the performance of the duties of the employment. (Italics supplied) The use of the word "exclusively is a further confirmation of the exclusory provision of the Act, subject only to exceptions which may be provided in the Act itself. 4. It might be mentioned that, within the Act itself, provision is made for remedies other than within the Act itself. Thus, Section 6, in part, provides: SEC. 6. Liability of third parties.-In case an employee suffers an injury for which compensation is due under this Act by any other person besides his employer, it shall be optional with such injured employee either to claim compensation from his employer, under this Act, or sue such other person for damages, in accordance with law; ... (Emphasis supplied) If the legislative intent under the first paragraph of Section 5 were to allow the injured employee to sue his employer under the Civil Code, the legislator could very easily have formulated the said first paragraph of Section 5 according to the pattern of Section 6. That that was not done shows the legislative intent not to allow any option to an employee to sue t he employer under the Civil Code for injuries compensable under the Act. 5. There should be no question but that the original first paragraph of Section 5 of the Workmen's Compensation Act, formulated in 1927, provided that an injured worker or employee, or his heirs, if entitled to compensation under the Act, cannot have independent recourse neither to the Civil Code nor to any other law relative to the liability of the employer. After 1927, there were occasions when the legislator had the opportunity to amend the first paragraph of Section 5 such that the remedies under the Act would not be exclusive; yet, the legislator refrained from doing so. That shows the legislatives continuing intent to maintain the exclusory provision of the first paragraph of Secti on 5 unless otherwise provided in the Act itself. (a) The original second paragraph of Section 5 provided: Employers contracting laborers in the Philippine Islands for work outside the same shall stipulate with such laborers that the remedies prescribed by this Act shall apply (exclusively) to injuries received outside the Islands through accidents happening in and during the performance of the duties of the employment (and all service contracts made in the manner prescribed in this section be presumed to include such agreement).
On June 20, 1952, through RA 772, the foregoing second paragraph was amended with the elimination of the underlined words in parentheses, and the addition of this sentence at the end of the paragraph: Such stipulation shall not prejudice the right of the laborers to the benefits of the Workmen's Compensation Law of the place where the accident occurs, should such law be more favorable to them. (Emphasis supplied) It will be seen that, within the Act itself, the exclusory character of the Act was amended. At that time, if he had so desired, the legislator could have amended the first paragraph of Section 5 so that the employee would have the option to sue the employer under the Act, or under the Civil Code, should the latter be more favorable to him. (b) The Workmen's Compensation Act, which took effect in 1927, grants compensation to an injured employee without regard to the presence or absence of negligence on the part of the employer. The compensation is deemed an expense chargeable to the industry (Murillo vs. Mendoza, 66 Phil. 689 [1938]). In time, it must have been thought that it was inequitable to have the amount of compensation, caused by negligence on the part of the employer, to be the same amount payable when the employer was not negligent. Based on that thinking, Section 4A 1 was included into the Act, on June 20, 1952, through RA 772. Said Section 4-A increased the compensation payable by 50% in case there was negligence on the part of the employer. That additional section evidenced the intent of the legislator not to give an option to an employee, injured with negligence on the part of the employer, to sue the latter under the provisions of the Civil Code. On June 20, 1964, Section 4-A was amended (insubstantially) by RA 4119. The legislator was again given the opportunity to provide, but he did not, the option to an employee to sue under the Act or under the Civil Code. When a Court gives effect to a statute not in accordance with the intent of the law-maker, the Court is unjustifiably legislating. It is in view of the foregoing that I vote for affirmation of the trial Court's dismissal of the Complaint. GUTIERREZ, JR., J., dissenting: To grant the petition and allow the victims of industrial accidents to file damages suits based on torts would be a radical innovation not only contrary to the express provisions of the Workmen's Compensation Act but a departure from the principles evolved in the long history of workmen's compensation. At the very least, it should be the legislature and not this Court which should remove the exclusory provision of the Workmen's Compensation Act, a provision reiterated in the present Labor Code on employees' compensation. Workmen's compensation evolved to remedy the evils associated with the situation in the early years of the industrial revolution when injured workingmen had to rely on damage suits to get r ecompense. Before workmen's compensation, an injured worker seeking damages would have to prove in a tort suit that his employer was either negligent or in bad faith, that his injury was caused by the employer and not a fellow worker, and that he was not guilty of contributory negligence. The employer could employ not only his wealth in defeating the claim for damages but a host of common law defenses available to him as well. The worker was supposed to know what he entered into when he accepted employment. As stated in the leading case of Priestley u. Fowler (3 M. & W. 1, 150 Reprint 1030) decided in 1837 "the mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself." By entering into a contract of employment, the worker was deemed to accept the risks of employment that he should discover and guard against himself. The problems associated with the application of the fellow servant rule, the assumption of risk doctrine, the principle of contributory negligence, and the many other defenses so easily raised in protracted damage suits illustrated the need for a system whereby workers had only to prove the fact of covered employment and the fact of injury arising from employment in order to be compensated. The need for a compensation scheme where liability is created solely by statute and made compulsory and where the element of fault-either the fault of the employer or the fault of the employee-disregarded became obvious. Another objective was to have simplified, expeditious, inexpensive, and non-litigious procedures so that victims of industrial accidents could more readily, if not automatically, receive compensation for work-related injuries. Inspite of common law defenses to defeat a claim being recognized, employers' liability acts were a major step in the desired direction. However, employers liability legislation proved inadequate. Legislative reform led to the workmen's compensation. I cite the above familiar background because workmen's compensation represents a compromise. In return for the near certainty of receiving a sum of money fixed by law, the injured worker gives up the right to subject the employer to a tort suit for huge amounts of damages. Thus, liability not only disregards the element of fault but it is also a pre- determined amount based on the wages of the injured worker and in certain cases, the actual cost of rehabilitation. The worker does not receive the total damages for his pain and suffering which he could otherwise claim in a civil suit. The employer is required to act swiftly on compensation claims. An administrative agency supervises the program. And because the overwhelming mass of workingmen are benefited by the compensation system, individual workers who may want to sue for big amounts of damages must yield to the interests of their entire working class. The nature of the compensation principle is e xplained as follows: An appreciation of the nature of the compensation principle is essential to an understanding of the acts and the cases interpreting them. By the turn of the century it was apparent that the toll of industrial accidents of both the avoidable and unavoidable variety had become enormous, and government was faced with the problem of who was to pay for the human wreckage wrought by the dangers of modern industry. If the accident was avoidable and could be attributed to the carelessness of the employer, existing tort principles offered some measure of redress. Even here, however, the woeful inadequacy of the fault principle was manifest. The uncertainty of the outcome of torts litigation in court placed the employee at a substantial disadvantage. So long as liability depended on fault there could be no recovery until the finger of blame had been pointed officially at the employer or his agents. In most cases both the facts and the law were uncertain. The witnesses, who were usually fellow workers of the victim, were torn between friendship or loyalty to their class, on the one hand, and fear of reprisal by the employer, on the other. The expense and delay of litigation often prompted the injured employee to accept a compromise settlement for a fraction of the full value of his claim. Even if suit were successfully prosecuted, a large share of the proceeds of the judgment were exacted as contingent fees by counsel. Thus the employer against whom judgment was cast often paid a substantial damage bill, while only a part of this enured to the benefit of the injured employee or his dependents. The employee's judgment was nearly always too little and too late. xxx xxx xxx Workmen's Compensation rests upon the economic principle that those persons who enjoy the product of a business- whether it be in the form of goods or services- should ultimately bear the cost of the injuries or deaths that are incident to the manufacture, preparation and distribution of the product. ... xxx xxx xxx Under this approach the element of personal fault either disappears entirely or is subordinated to broader economic considerations. The employer absorbs the cost of accident loss only initially; it is expected that this cost will eventually pass down the stream of commerce in the form of increase price until it is spread in dilution among the ultimate consumers. So long as each
competing unit in a given industry is uniformly affected, no producer can gain any substantial competitive advantage or suffer any appreciable loss by reason of the general adoption of the compensation principle. In order that the compensation principle may operate properly and with fairness to all parties it is essential that the anticipated accident cost be predictable and that it be fixed at a figure that will not disrupt too violently the traffic in the product of the industry affected. Thus predictability and moderateness of cost are necessary from the broad economic viewpoint. .... Compensation, then, differs from the conventional damage suit in two important respects: Fault on the part of either employer or employee is eliminated; and compensation payable according to a definitely limited schedule is substituted for damages. All compensation acts alike work these two major changes, irrespective of how they may differ i n other particulars. Compensation, when regarded from the viewpoint of employer and employee represents a compromise in which each party surrenders certain advantages in order to gain others which are of more importance both to him and to society. The employer gives up the immunity he otherwise would enjoy in cases where he is not at fault, and the employee surrenders his former righ t to full damages and accepts instead a more modest claim for bare essentials, represented by compensation. The importance of the compromise character of compensation cannot be overemphasized. The statutes vary a great deal with reference to the proper point of balance. The amount of weekly compensation payments and the length of the period during which compensation is to be paid are matters concerning which the acts differ considerably. The interpretation of any compensation statute will be influenced greatly by the court's reaction to the basic point of compromise established in the Act. If the court feels that the basic compromise unduly favors the employer, it will be tempted to restore what it regards as a proper balance by adopting an interpretation that favors the worker. In this way, a compensation act drawn in a spirit of extreme conservatism may be transformed by a sympathetic court into a fairly liberal instrument; and conversely, an act that greatly favors the laborer may be so interpreted by the courts that employers can have little reason to complain. Much of the unevenness and apparent conflict in compensation decisions throughout the various jurisdictions must be attributed to this." (Malone & Plant, Workmen's Compensation American Casebook Series, pp. 63-65). The schedule of compensation, the rates of payments, the compensable injuries and diseases, the premiums paid by employers to the present system, the actuarial stability of the trust fund and many other interrelated parts have all been carefully studied before the integrated scheme was enacted i n to law. We have a system whose parts must mesh harmonious with one another if it is to succeed. The basic theory has to be followed. If this Court disregards this totality of the scheme and in a spirit of generosity recasts some parts of the system without touching the related others, the entire structure is endangered. For instance, I am personally against stretching the law and allowing payment of compensation for contingencies never envisioned to be c ompensable when the law was formulated. Certainly, only harmful results to the principle of workmen's compensation can arise if workmen, whom the law allows to receive employment compensation, can still elect to file damage suits for industrial accidents. It was precisely for this reason that Section 5 of the Workmen's Compensation Act, which reads: SEC. 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. ... Article 173 of the labor Code also provides: ART. 173. Exclusivenesss 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. I am against the Court assuming the role of legislator in a matter calling for actuarial studies and public hearings. If employers already required to contribute to the State Insurance Fund will still have to bear the cost of damage suits or get insurance for that purpose, a major study will be necessary. The issue before us is more far reaching than the interests of the poor victims and their families. All workers covered by workmen's compensation and all employers who employ covered employees are affected. Even as I have deepest sympathies for the victims, I regret that I am constrained to dissent from the majority opinion. Separate Opinions MELENCIO-HERRERA, J., dissenting: A This case involves a complaint for damages for the death of five employees of PHILEX Mining Corporation under the general provisions of the Civil Code. The Civil Code itself, however, provides for its non-applicability to the complaint. It is specifically provided in Article 2196 of the Code, found in Title XVIII-Damages that: COMPENSATION FOR WORKMEN AND OTHER EMPLOYEES IN CASE OF DEATH, INJURY OR ILLNESS IS REGULATED BY SPECIAL LAWS. Compensation and damages are synonymous. In Esguerra vs. Muñoz Palma, etc., et al., 104 Phil. 582, 586, Justice J.B.L. Reyes had said: Petitioner also avers that compensation is not damages. This argument is but a play on words. The term compensation' is used in the law (Act 3812 and Republic Act 772) in the sense of indemnity for damages suffered, being awarded for a personal injury caused or aggravated by or in the course of employment. ... By the very provisions of the Civil Code, it is a "special law", not the Code itself, which has to apply to the complaint involved in the instant case. That "special law", in reference to the complaint, can be no other than the Workmen's Compensation Even assuming, without conceding, that an employee is entitled to an election of remedies, as the majority rules, both options cannot be exercised simultaneously, and the exercise of one will preclude the exercise of the other. The petitioners had already exercised their option to come under the Workmen's Compensation Act, and they have already received compensation payable to them under that Act. Stated differently, the r emedy under the Workmen's Compensation Act had already become a "finished transaction". There are two considerations why it is believed petitioners should no longer be allowed to exercise the option to sue under the Civil Code. In the first place, the proceedings under the Workmen's Compensation Act have already become the law i n regards to" the "election of remedies", because those proceedings had become a "finished transaction". In the second place, it should be plainly equitable that, if a person entitled to an "election of remedies" makes a first election and accepts the benefits thereof, he should no longer be allowed to avail himself of the second option. At the very least, if he wants to make a second election, in disregard of the first election he has made, when he makes the second election he should surrender the benefits he had obtained under the first election, This was not done in the case before the Court. B. 'There is full concurrence on my part with the dissenting opinion of Mr. Justice Gutierrez upholding "the exclusory provision of the Workmen's Compensation Act." I may further add: 1. The Workmen's Compensation Act (Act No. 3428) was approved on December 10, 1927 and took effect on June 10, 1928. It was patterned from Minnesota and Hawaii statutes.
Act No. 3428 was adopted by the Philippine legislature, in Spanish and some sections of the law were taken from the statutes of Minnesota and Hawaii, (Chapter 209 of the Revised Laws of Hawaii, 1925). [Morabe & Inton, Workmen's Compensation Act, p. 2] Under the Workmen's Compensation Act of Hawaii, when the Act is applicable, the remedy under the Act is exclusive The following is stated in 1 Schneider Workmen's Compensation Text, pp. 266, 267. Sec. 112. Hawaii Statutory Synopsis. The act is compulsory as to employees in 'all industrial employment' and employees of the territory and its political subdivisions. (Sections 7480-7481, S.S., Vol. 1, p. 713.) Compensation is not payable when injury is due to employee's willful intention to injure himself or another or to his intoxication. (Sec. 7482, S.S., p. 713.) When the act is applicable the remedy thereunder is exclusive (Sec. 7483, S.S., p. 714.) 2. In providing for exclusiveness of the remedy under our Workmen's Compensation Act, the Philippine Legislature worded the first paragraph of Section 5 of the Act as follows: SEC. 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 (Paragraphing and emphasis supplied) In regards to the intent of the Legislature under the foregoing provision: A cardinal rule in the interpretation of statutes is that the meaning and intention of the law-making body must be sought, first of all in the words of the statute itself, read and considered in their natural, ordinary, commonly-accepted and most obvious significations, according to good and approved usage and without resorting to forced or subtle construction Courts, therefore, as a rule, cannot presume that the law-making body does not know the meaning of words and the rules of grammar. Consequently, the grammatical reading of a statute must be presumed to yield its correct sense. (Espino vs. Cleofe 52 SCRA 92, 98) [Italics supplied] 3. The original second paragraph of Section 5 provided: Employers contracting laborers in the Philippine Islands for work outside the same shall stipulate with such laborers that the remedies prescribed by this Act shall apply exclusively to injuries received outside the Islands through accidents happening in and during the performance of the duties of the employment. (Italics supplied) The use of the word "exclusively is a further confirmation of the exclusory provision of the Act, subject only to exceptions which may be provided in the Act itself. 4. It might be mentioned that, within the Act itself, provision is made for remedies other than within the Act itself. Thus, Section 6, in part, provides: SEC. 6. Liability of third parties.-In case an employee suffers an injury for which compensation is due under this Act by any other person besides his employer, it shall be optional with such injured employee either to claim compensation from his employer, under this Act, or sue such other person for damages, in accordance with law; ... (Emphasis supplied) If the legislative intent under the first paragraph of Section 5 were to allow the injured employee to sue his employer under the Civil Code, the legislator could very easily have formulated the said first paragraph of Section 5 according to the pattern of Section 6. That that was not done shows the legislative intent not to allow any option to an employee to sue the employer under the Civil Code for injuries compensable under the Act. 5. There should be no question but that the original first paragraph of Section 5 of the Workmen's Compensation Act, formulated in 1927, provided that an injured worker or employee, or his heirs, if entitled to compensation under the Act, cannot have independent recourse neither to the Civil Code nor to any other law relative to the liability of the employer. After 1927, there were occasions when the legislator had the opportunity to amend the first paragraph of Section 5 such that the remedies under the Act would not be exclusive; yet, the legislator refrained from doing so. That shows the legislatives continuing intent to maintain the exclusory provision of the first paragraph of Section 5 unless otherwise provided in the Act itself. (a) The original second paragraph of Section 5 provided: Employers contracting laborers in the Philippine Islands for work outside the same shall stipulate with such laborers that the remedies prescribed by this Act shall apply (exclusively) to injuries received outside the Islands through accidents happening in and during the performance of the duties of the employment (and all service contracts made in the manner prescribed in this section be presumed to include such agreement). On June 20, 1952, through RA 772, the foregoing second paragraph was amended with the elimination of the underlined words in parentheses, and the addition of this sentence at the end of the paragraph: Such stipulation shall not prejudice the right of the laborers to the benefits of the Workmen's Compensation Law of the place where the accident occurs, should such law be more favorable to them. (Emphasis supplied) It will be seen that, within the Act itself, the exclusory character of the Act was amended. At that time, if he had so desired, the legislator could have amended the first paragraph of Section 5 so that the employee would have the option to sue the employer under the Act, or under the Civil Code, should the latter be more favorable to him. (b) The Workmen's Compensation Act, which took effect in 1927, grants compensation to an injured employee without regard to the presence or absence of negligence on the part of the employer. The compensation is deemed an expense chargeable to the industry (Murillo vs. Mendoza, 66 Phil. 689 [1938]). In time, it must have been thought that it was inequitable to have the amount of compensation, caused by negligence on the part of the employer, to be the same amount payable when the employer was not negligent. Based on that thinking, Section 4A 1 was included into the Act, on June 20, 1952, through RA 772. Said Section 4-A increased the compensation payable by 50% in case there was negligence on the part of the employer. That additional section evidenced the intent of the legislator not to give an option to an employee, injured with negligence on the part of the employer, to sue the latter under the provisions of the Civil Code. On June 20, 1964, Section 4-A was amended (insubstantially) by RA 4119. The legislator was again given the opportunity to provide, but he did not, the option to an employee to sue under the Act or under the Civil Code. When a Court gives effect to a statute not in accordance with the intent of the law-maker, the Court is unjustifiably legislating. It is in view of the foregoing that I vote for affirmation of the trial Court's dismissal of the Complaint. GUTIERREZ, JR., J., dissenting: To grant the petition and allow the victims of industrial accidents to file damages suits based on torts would be a radical innovation not only contrary to the express provisions of the Workmen's Compensation Act but a departure from the principles evolved in the long history of workmen's compensation. At the very least, it should be the legislature and not this Court which should remove the exclusory provision of the Workmen's Compensation Act, a provision reiterated in the present Labor Code on employees' compensation. Workmen's compensation evolved to remedy the evils associated with the situation in the early years of the industrial revolution when injured workingmen had to rely on damage suits to get r ecompense.
Before workmen's compensation, an injured worker seeking damages would have to prove in a tort suit that his employer was either negligent or in bad faith, that his injury was caused by the employer and not a fellow worker, and that he was not gui lty of contributory negligence. The employer could employ not only his wealth in defeating the claim for damages but a host of common law defenses available to him as well. The worker was supposed to know what he entered into when he accepted employment. As stated in the leading case of Priestley u. Fowler (3 M. & W. 1, 150 Reprint 1030) decided in 1837 "the mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself." By entering into a contract of employment, the worker was deemed to accept the risks of employment that he should discover and guard against himself. The problems associated with the application of the fellow servant rule, the assumption of risk doctrine, the principle of contributory negligence, and the many other defenses so easily raised in protracted damage suits illustrated the need for a system whereby workers had only to prove the fact of covered employment and the fact of injury arising from employment in order to be compensated. The need for a compensation scheme where liability is created solely by statute and made compulsory and where the element of fault-either the fault of the employer or the fault of the employee-disregarded became obvious. Another objective was to have simplified, expeditious, inexpensive, and non-litigious procedures so that victims of i ndustrial accidents could more readily, if not automatically, receive compensation for work-related injuries. Inspite of common law defenses to defeat a claim being recognized, employers' liability acts were a major step in the desired direction. However, employers liability legislation proved inadequate. Legislative reform led to the workmen's compensation. I cite the above familiar background because workmen's compensation represents a compromise. In return for the near certainty of receiving a sum of money fixed by law, the injured worker gives up the right to subject the employer to a tort suit for huge amounts of damages. Thus, liability not only disregards the element of fault but it is also a pre- determined amount based on the wages of the injured worker and in certain cases, the actual cost of rehabilitation. The worker does not receive the total damages for his pain and suffering which he could otherwise claim in a civil suit. The employer is required to act swiftly on compensation claims. An administrative agency supervises the program. And because the overwhelming mass of workingmen are benefited by the compensation system, individual workers who may want to sue for big amounts of damages must yield to the interests of their entire working class. The nature of the compensation principle is e xplained as follows: An appreciation of the nature of the compensation principle is essential to an understanding of the acts and the cases interpreting them. By the turn of the century it was apparent that the toll of industrial accidents of both the avoidable and unavoidable variety had become enormous, and government was faced with the problem of who was to pay for the human wreckage wrought by the dangers of modern industry. If the accident was avoidable and could be attributed to the carelessness of the employer, existing tort principles offered some measure of redress. Even here, however, the woeful inadequacy of the fault principle was manifest. The uncertainty of the outcome of torts litigation in court placed the employee at a substantial disadvantage. So long as lia bility depended on fault there could be no recovery until the finger of blame had been pointed officially at the employer or his agents. In most cases both the facts and the law were uncertain. The witnesses, who were usually fellow workers of the victim, were torn between friendship or loyalty to their class, on the one hand, and fear of reprisal by the employer, on the other. The expense and delay of litigation often prompted the injured employee to accept a compromise settlement for a fraction of the full value of his claim. Even if suit were successfully prosecuted, a large share of the proceeds of the judgment were exacted as contingent fees by counsel. Thus the employer against whom judgment was cast often paid a substantial damage bill, while only a part of this enured to the benefit of the injured employee or his dependents. The employee's judgment was nearly always too little and too late. xxx xxx xxx Workmen's Compensation rests upon the economic principle that those persons who enjoy the product of a business - whether it be in the form of goods or services- should ultimately bear the cost of the injuries or deaths that are incident to the manufacture, preparation and distribution of the product. ... xxx xxx xxx Under this approach the element of personal fault either disappears entirely or is subordinated to broader economic considerations. The employer absorbs the cost of accident loss only initially; it i s expected that this cost will eventually pass down the stream of commerce in the form of increase price until it is spread in dilution among the ultimate consumers. So long as each competing unit in a given industry is uniformly affected, no producer can gain any substantial competitive advantage or suffer any appreciable loss by reason of the general adoption of the compensation principle. In order that the compensation principle may operate properly and with fairness to all parties it is essential that the anticipated accident cost be predictable and that it be fixed at a figure that will not disrupt too violently the traffic in the product of the industry affected. Thus predictability and moderateness of cost are necessary from the broad economic viewpoint. .... Compensation, then, differs from the conventional damage suit in two important respects: Fault on the part of either employer or employee is eliminated; and compensation payable according to a definitely limited schedule is substituted for damages. All compensation acts alike work these two major changes, irrespective of how they may differ i n other particulars. Compensation, when regarded from the viewpoint of employer and employee represents a compromise in which each party surrenders certain advantages in order to gain others which are of more importance both to him and to society. The employer gives up the immunity he otherwise would enjoy in cases where he is not at fault, and the employee surrenders his former right to full damages and accepts instead a more modest claim for bare essentials, represented by compensation. The importance of the compromise character of compensation cannot be overemphasized. The statutes vary a great deal with reference to the proper point of balance. The amount of weekly compensation payments and the length of the period during which compensation is to be paid are matters concerning which the acts differ considerably. The interpretation of any compensation statute will be influenced greatly by the court's reaction to the basic point of compromise established in the Act. If the court feels that the basic compromise unduly favors the employer, it will be tempted to restore what it regards as a proper balance by adopting an interpretation that favors the worker. In this way, a compensation act drawn in a spirit of extreme conservatism may be transformed by a sympathetic court into a fairly liberal instrument; and conversely, an act that greatly favors the laborer may be so interpreted by the courts that employers can have little reason to complain. Much of the unevenness and apparent conflict in compensation decisions throughout the various jurisdictions must be attributed to this." (Malone & Plant, Workmen's Compensation American Casebook Seri es, pp. 63-65). The schedule of compensation, the rates of payments, the compensable injuries and diseases, the premiums paid by employers to the present system, the actuarial stability of the trust fund and many other interrelated parts have all been carefully studied before the integrated scheme was enacted in to law. We have a system whose parts must mesh harmonious with one another if it is to succeed. The basic theory has to be followed. If this Court disregards this totality of the scheme and in a spirit of generosity recasts some parts of the system without touching the related others, the entire structure is endangered. For instance, I am personally against stretching the law and allowing payment of compensation for contingencies never envisioned to be compensable when the law was formulated. Certainly, only
harmful results to the principle of workmen's compensation can arise if workmen, whom the law allows to receive employment compensation, can still elect to file damage suits for industrial accidents. It was precisely for this reason that Section 5 of the Workmen's Compensation Act, which reads: SEC. 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. ... Article 173 of the labor Code also provides: ART. 173. Exclusivenesss 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. I am against the Court assuming the role of legislator in a matter calling for actuarial studies and public hearings. If employers already required to contribute to the State I nsurance Fund will still have to bear the cost of damage suits or get insurance for that purpose, a major study will be necessary. The issue before us is more far reaching than the interests of the poor victims and their families. All workers covered by workmen's compensation and all employers who employ covered employees are affected. Even as I have deepest sympathies for the victims, I regret that I am constrained to dissent from the majority opinion. G.R. No. 72005 May 29, 1987 PHILIPPINE BRITISH ASSURANCE CO., INC., petitioner, vs. HONORABLE INTERMEDIATE APPELLATE COURT; SYCWIN COATING & WIRES, INC., and DOMINADOR CACPAL, CHIEF DEPUTY SHERRIF OF MANILA, respondents.
GANCAYCO, J.: This is a Petition for Review on certiorari of the Resolution dated September 12, 1985 of the Intermediate Appellate Court in ACG.R. No. CR-05409 1 granting private respondent's motion for execution pending appeal and ordering the issuance of the corresponding writ of execution on the counterbond to lift attachment file d by petitioner. The focal issue that emerges is whether an order of execution pending appeal of a judgment maybe enforced on the said bond. In the Resolution of September 25, 1985 2 this Court as prayed for, without necessarily giving due course to the petition, issued a temporary restraining order enjoining the respondents from enforcing the order complaint of. The records disclose that private respondent Sycwin Coating & Wires, Inc., filed a complaint for collection of a sum of money against Varian Industrial Corporation before the Regional Trial Court of Quezon City. During the pendency of the suit, private respondent succeeded in attaching some of the properties of Varian Industrial Corporation upon the posting of a supersedeas bond. 3 The latter in turn posted a counterbond in the sum of P1,400, 000.00 4 thru petitioner Philippine British Assurance Co., Inc., so the attached properties were released. On December 28, 1984, the trial court rendered a Decision, the dispositive portion of which reads: WHEREFORE, plaintiff's Motion for Summary Judgment is hereby GRANTED, and judgment is rendered in favor of the plaintiff and against the defendant Varian Industrial Corporation, and the latter is hereby ordered: 1. To pay plaintiff the amount of P1,401,468.00, the principal obligation with 12% interest per annum from the date of default until fully paid; 2. To pay plaintiff 5% of the principal obligation as liquidated damages; 3. To pay plaintiff P30,000.00 as exemplary damages; 4. To pay plaintiff 15% of P1,401,468.00, the principal obligation, as and for attorney's fees; and 5. To pay the costs of suit. Accordingly, the counterclaim of the defendant is hereby DISMISSED for lack of merit. SO ORDERED. 5 Varian Industrial Corporation appealed the decision to the respondent Court. Sycwin then filed a petition for execution pending appeal against the properties of Varian in respondent Court. Varian was required to file its comment but none was filed. In the Resolution of July 5, 1985, respondent Court ordered the execution pending appeal as prayed for. 6 However, the writ of execution was returned unsatisfied as Varian failed to deliver the previously attached personal properties upon demand. In a Petition dated August 13, 1985 filed with respondent Court Sycwin prayed that the surety (herein petitioner) be ordered to pay the value of its bond. 7 In compliance with the Resolution of August 23, 1985 of the respondent Court herein petitioner filed its comment. 8 In the Resolution of September 12, 1985, 9 the respondent Court granted the petition. Hence this action. It is the submission of private respondent Sycwin that without a previous motion for reconsideration of the questioned resolution, certiorari would not lie. While as a general rule a motion for reconsideration has been considered a condition sine qua non for the granting of a writ of certiorari, this rule does not apply when special circumstances warrant immediate or more direct action. 10 It has been held further that a motion for reconsideration may be dispensed with in cases like this where execution had been ordered and the need for relief was extremely urgent. 11 The counterbond provides: WHEREAS, in the above-entitled case pending in the Regional Trial Court, National Capital Judicial Region, Branch LXXXV, Quezon City, an order of Attachment was issued against abovenamed Defendant; WHEREAS, the Defendant, for the purpose of lifting and/or dissolving the order of attachment issued against them in the aboveen-titled case, have offered to file a counterbond in the sum of PESOS ONE MILLION FOUR HUNDRED THOUSAND ONLY (P1,400,000.00), Philippine Currency, as provided for in Section 5, Rule 57 of the Revised Rules of Court. NOW, THEREFORE, we, VARIAN INDUSTRIAL CORPORATION, as Principal and the PHILIPPINE BRITISH ASSURANCE COMPANY, INC., a corporation duly organized and existing under and by virtue of the laws of the Philippines, as Surety, in consideration of the above and of the lifting or dissolution of the order of attachment, hereby jointly and severally, bind ourselves in favor of the above Plaintiff in the sum of PESOS ONE MILLION FOUR HUNDRED THOUSAND ONLY (P1,400,000.00), Philippine Currency, under the condition that in case the Plaintiff recovers judgment in the action, and Defendant will, on demand, re-deliver the attached property so released to the Officer of the Court and the same shall be applied to the payment of the judgment, or in default thereof, the defendant and Surety will, on demand, pay to the Plaintiff the full value of the property released. EXECUTED at Manila, Philippines, this 28th day of June, 1984. 12 Sections 5, 12, and 17 of Rule 57 of the Revised Rules of Court also provide: SEC. 5. Manner of attaching property. — The officer executing the order shall without delay attach, to await judgment and execution in the action, all the properties of the party against whom the order is issued in the province, not exempt from execution, or so much thereof as may be sufficient to satisfy the applicant's demand, unless the former makes a deposit with the clerk or judge of the court from which the order issued, or gives a counter-bond executed to the applicant, in an amount sufficient to satisfy such demand besides costs, or in an amount equal to the value of the property which is about to be attached, to secure payment to the applicant of any judgement ment which he may recover i n the action. The officer shall also
forthwith serve a copy of the applicant's affidavit and bond, and of the order of attachment, on the adverse party, if he be found within the province. SEC. 12. Discharge of attachment upon giving counterbond. — At any time after an order of attachment has been granted, the party whose property has been attached, or the person appearing on his behalf, may, upon reasonable notice to the applicant, apply to the judge who granted the order, or to the judge of the court in which the action is pending, for an order discharging the attachment wholly or in part on the security given. The judge shall, after hearing, order the discharge of the attachment if a cash deposit is made, or a counter-bond executed to the attaching creditor is filed, on behalf of the adverse party, with the clerk or judge of the court where the application is made, in an amount equal to the value of the property attached as determined by the judge, to secure the payment of any judgment that the attaching creditor may recover in the action. Upon the filing of such counter-bond, copy thereof shall forthwith be served on the attaching creditor or his lawyer. Upon the discharge of an attachment in accordance with the provisions of this section the property attached, or the procee ds of any sale thereof, shall be delivered to the party making the deposit or giving the counterbond aforesaid standing in place of the property so released. Should such counterbond for any reason be found to be, or become, insufficient, and the party furnishing the same fail to file an additional counterbond, the attaching creditor may apply for a new order of attachment. SEC. 17. When execution returned unsatisfied, recovery had upon bond. — If the execution be returned unsatisfied in whole or in part, the surety or sureties on any counter-bond given pursuant to the provisions of this rule to secure the payment of the judgment shall become charged on such counter- bond, and bound to pay to the judgement creditor upon demand, the amount due under the judgment, which amount may be recovered from such surety or sureties after notice and summary hearing in the same action. (Emphasis supplied.) Under Sections 5 and 12, Rule 57 above reproduced it is provided that the counterbond is intended to secure the payment of "any judgment" that the attaching creditor may recover in the action. Under Section 17 of same rule it provides that when "the execution be returned unsatisfied in whole or in part" it is only then that "payment of the judgment shall become charged on such counterbond." The counterbond was issued in accordance with the provisions of Section 5, Rule 57 of the Rules of Court as provided in the second paragraph aforecited which is deemed reproduced as part of the counterbond. In the third paragraph it is also stipulated that the counterbond is to be "applied for the payment of the judgment." Neither the rules nor the provisions of the counterbond limited its application to a final and executory judgment. Indeed, it is specified that it applies to the payment of any judgment that maybe recovered by plaintiff. Thus, the only logical conclusion is that an execution of any judgment including one pending appeal if returned unsatisfied maybe charged against such a counterbond. It is well recognized rule that where the law does not distinguish, courts should not distinguish. Ubi lex non distinguish nec nos distinguere debemos. 13 "The rule, founded on logic, is a corollary of the principle that general words and phrases in a statute should ordinarily be accorded their natural and general significance. 14 The rule requires that a general term or phrase should not be reduced into parts and one part distinguished from the other so as to justify its exclusion from the operation of the law. 15 In other words, there should be no distinction in the application of a statute where none is indicated.16 For courts are not authorized to distinguish where the law makes no distinction. They should instead administer the law not as they think it ought to be but as they find it and without regard to consequences. 17 A corollary of the principle is the rule that where the law does not make any exception, courts may not except something therefrom, unless there is compelling reason apparent in the law to justify it.18 Thus where a statute grants a person against whom possession of "any land" is unlawfully withheld the right to bring an action for unlawful detainer, this Court held that the phrase "any land" includes all kinds of land, whether agricultural, residential, or mineral.19 Since the law in this case does not make any distinction nor intended to make any exception, when it speaks of "any judgment" which maybe charged against the counterbond, it should be interpreted to refer not only to a final and executory judgment in the case but also a judgment pending appeal. All that is required is that the conditions provided for by law are complied with, as outlined in the case of Towers Assurance Corporation v. Ororama Supermart, 20 Under Section 17, in order that the judgment creditor might recover from the surety on the counterbond, it is necessary (1) that the execution be first issued against the principal debtor and that such executio n was returned unsatisfied in whole or in part; (2) that the creditor make a demand upon the surety for the satisfaction of the judgment, and (3) that the surety be given notice and a summary hearing on the same action as to his liability for the judgment under his counterbond. The rule therefore, is that the counterbond to lift attachment that is issued in accordance with the provisions of Section 5, Rule 57, of the Rules of Court, shall be charged with the payment of any judgment that is returned unsatisfied. It covers not only a final and executory judgement but also the execution of a judgment pending appeal. WHEREFORE, the petition is hereby DISMISSED for lack of merit and the restraining order issued on September 25, 1985 is hereby dissolved with costs against petitioner. SO ORDERED. Yap (Chairman), Narvasa, Melencio-Herrera, Cruz and Sarmiento, JJ., c oncur. Feliciano, J., is on leave. G.R. No. 74917 January 20, 1988 BANCO DE ORO SAVINGS AND MORTGAGE BANK, petitioner, vs. EQUITABLE BANKING CORPORATION, PHILIPPINE CLEARING HOUSE CORPORATION, AND REGIONAL T RIAL COURT OF QUEZON CITY, BRANCH XCII (92), respondents.
GANCAYCO, J.: This is a petition for review on certiorari of a decision of the Regional Trial Court of Quezon City promulgated on March 24, 1986 in Civil Case No. Q-46517 entitled Banco de Oro Savings and Mortgage Bank versus Equitable Banking Corporation and the Philippine Clearing House Corporation after a review of the Decision of the Board of Directors of the Philippine Clearing House Corporation (PCHC) in the case of Equitable Banking Corporation (EBC) vs. Banco de Oro Savings and Mortgage (BCO), ARBICOM Case No. 84033. The undisputed facts are as follows: It appears that some time in March, April, May and August 1983, plaintiff through its Visa Card Department, drew six crossed Manager's check (Exhibits "A" to "F", and herein referred to as Checks) having an aggregate amount of Forty Five Thousand Nine Hundred and Eighty Two & 23/100 (P45,982.23) Pesos and payable to certain member establishments of Visa Card. Subsequently, the Checks were deposited with the defendant to the cre dit of its depositor, a certain Aida Trencio. Following normal procedures, and after stamping at the back of the Checks the usual endorsements. All prior and/or lack of endorsement guaranteed the defendant sent the checks for clearing through the Philippine Clearing House Corporation (PCHC). Accordingly, plaintiff paid the Checks; its clearing account was debited for the value of the Checks and defendant's clearing account was credited for the same amount,
Thereafter, plaintiff discovered that the endorsements appearing at the back of the Checks and purporting to be that of the payees were forged and/or unauthorized or otherwise belong to persons other than the payees. Pursuant to the PCHC Clearing Rules and Regulations, plaintiff presented the Checks directly to the defendant for the purpose of claiming reimbursement from the latter. However, defendant refused to accept such direct presentation and to reimburse the plaintiff for the value of the Checks; hence, this case. In its Complaint, plaintiff prays for judgment to require the defendant to pay the plaintiff the sum of P45,982.23 with interest at the rate of 12% per annum from the date of the complaint plus attorney's fees in the amount of P10,000.00 as well as the cost of the suit. In accordance with Section 38 of the Clearing House Rules and Regulations, the dispute was presented for Arbitration; and Atty . Ceasar Querubin was designated as the Arbitrator. After an exhaustive investigation and hearing the Arbiter rendered a decision in favor of the plaintiff and against the defendant ordering the PCHC to debit the clearing account of the defendant, and to credit the clearing account of the plaintiff of the amount of P45,982.23 with interest at the rate of 12% per annum from date of the complaint and Attorney's fee in the amount of P5,000.00. No pronouncement as to cost was made. 1 In a motion for reconsideration filed by the petitioner, the Board of Directors of the PCHC affirmed the decision of the said Arbiter in this wise: In view of all the foregoing, the decision of the Arbiter is confirmed; and the Philippine Clearing House Corporation is hereby ordered to debit the clearing account of the defendant and credit the clearing account of plaintiff the amount of Forty Five Thousand Nine Hundred Eighty Two & 23/100 (P45,982.23) Pesos with interest at the rate of 12% per annum from date of the complaint, and the Attorney's fee in the amount of Five Thousand (P5,000.00) Pesos. Thus, a petition for review was filed with the Regional Trial Court of Quezon City, Branch XCII, wherein in due course a decision was rendered affirming in toto the decision of the PCHC. Hence this petition. The petition is focused on the following issues: 1. Did the PCHC have any jurisdiction to give due course to and adjudicate Arbicom Case No. 84033? 2. Were the subject checks non-negotiable and if not, does it fall under the ambit of the power of the PCHC? 3. Is the Negotiable Instrument Law, Act No. 2031 applicable in deciding controversies of this nature by the PCHC? 4. What law should govern in resolving controversies of this nature? 5. Was the petitioner bank negligent and thus responsible for any undue payment? Petitioner maintains that the PCHC is not clothed with jurisdiction because the Clearing House Rules and Regulations of PCHC cover and apply only to checks that are genuinely negotiable. Emphasis is laid on the primary purpose of the PCHC in the Articles of Incorporation, which states: To provide, maintain and render an effective, convenient, efficient, economical and relevant exchange and facilitate service limited to check processing and sorting by way of assisting member banks, entities in cle aring checks and other clearing items as defined in existing and in future Central Bank of the Philippines circulars, memoranda, circular letters, rules and regulations and policies in pursuance to the provisions of Section 107 of R.A. 265. ... and Section 107 of R.A. 265 which provides: xxx xxx xxx The deposit reserves maintained by the banks in the Central Bank, in accordance with the provisions of Section 1000 shall serve as a basis for the clearing of checks, and the settlement of i nterbank balances ... Petitioner argues that by law and common sense, the term check should be interpreted as one that fits the articles of incorporation of the PCHC, the Central Bank and the Clearing House Rules stating that it is a negotiable instrument citing the definition of a "check" as basically a "bill of exchange" under Section 185 of the NIL and that it should be payable to "order" or to "bearer" under Section 126 of game law. Petitioner alleges that with the cancellation of the printed words "or bearer from the face of the check, it becomes non-negotiable so the PCHC has no jurisdiction over the case. The Regional Trial Court took exception to this stand and conclusion put forth by the herein petitioner as it held: Petitioner's theory cannot be maintained. As will be noted, the PCHC makes no distinction as to the character or nature of the checks subject of its jurisdiction. The pertinent provisions quoted in petitioners memorandum simply refer to check(s). Where the law does not distinguish, we shall not distinguish. In the case of Reyes vs. Chuanico (CA-G.R. No. 20813 R, Feb. 5, 1962) the Appellate Court categorically stated that there are four kinds of checks in this jurisdiction; the regular check; the cashier's check; the traveller's check; and the crossed check. The Court, further elucidated, that while the Negotiable Instruments Law does not contain any provision on crossed checks, i t is coon practice in commercial and banking operations to issue checks of this character, obviously in accordance with Article 541 of the Code of Commerce. Attention is likewise called to Section 185 of the Negotiable Instruments Law: Sec. 185. Check defined. — A check is a bill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this act applicable to a bill of exchange payable on demand apply to a check and the provisions of Section 61 (supra) that the drawer may insert in the instrument an express stipulation negating or limiting his own liability to the holder. Consequently, it appears that the use of the term "check" in t he Articles of Incorporation of PCHC is to be perceived as not limited to negotiable checks only, but to checks as is generally known in use in commercial or business transactions. Anent Petitioner's liability on said instruments, this court is in full accord with the ruling of the PCHC Board of Directors that: In presenting the Checks for clearing and for payment, the defendant made an express guarantee on the validity of "all prior endorsements." Thus, stamped at the back of the checks are the defendant's clear warranty; ALL PRIOR ENDORSEMENTS AND/OR LACK OF ENDORSEMENTS GUARANTEED. With. out such warranty, plaintiff would not have paid on the checks. No amount of legal jargon can reverse the clear meaning of defendant's warranty. As the warranty has proven to be false and inaccurate, the defendant is liable for any damage arising out of the falsity of its representation. The principle of estoppel, effectively prevents the defendant from denying liability for any damage sustained by the plaintiff which, relying upon an action or declaration of the defendant, paid on the Checks. The same principle of estoppel effectively prevents the defendant from denying the existence of the Checks. (Pp. 1011 Decision; pp. 4344, Rollo) We agree. As provided in the aforecited articles of incorporation of PCHC its operation extend to "clearing checks and other clearing items." No doubt transactions on non-negotiable checks are within the ambit of its jurisdiction. In a previous case, this Court had occasion to rule: "Ubi lex non distinguish nec nos distinguere debemos." 2 It was enunciated in Loc Cham v. Ocampo, 77 Phil. 636 (1946): The rule, founded on logic is a corollary of the principle that general words and phrases in a statute should ordinarily be accorded their natural and general significance. In other words, there should be no distinction in the application of a statute where none is indicated.
There should be no distinction in the application of a statute where none is indicated for courts are not authorized to distinguish where the law makes no distinction. They should instead administer the law not as they think it ought to be but as they find it and without regard to consequences. 3 The term check as used in the said Articles of Incorporation of PCHC can only c onnote checks in general use in commercial and business activities. It cannot be conceived to be limited to negotiable checks only . Checks are used between banks and bankers and their customers, and are designed to facilitate banking operations. It is of the essence to be payable on demand, because the contract between the banker and the customer is that the money is needed on demand. 4 The participation of the two banks, petitioner and private respondent, in the clearing operations of PCHC is a manifestation of their submission to its jurisdiction. Sec. 3 and 36.6 of the PCHC-CHRR clearing rules and regulations provide: SEC. 3. AGREEMENT TO THESE RULES. — It is the general agreement and understanding that any participant in the Philippine Clearing House Corporation, MICR clearing operations by the mere fact of their participation, thereby manifests its agreement to these Rules and Regulations and i ts subsequent amendments." Sec 36.6. (ARBITRATION) — The fact that a bank participates in the clearing operations of the PCHC shall be deemed its written and subscribed consent to the binding effect of this arbitration agreement as if it had done so in accordance with section 4 of the Republic Act No. 876, otherwise known as the Arbitration Law. Further Section 2 of the Arbitration Law mandates: Two or more persons or parties may submit to the arbitration of one or more arbitrators any controversy existing between them at the time of the submission and which may be the subject of an action, or the parties of any contract may in such contract agree to settle by arbitration a controversy thereafter arising between them. Such submission or contract shall be valid and irrevocable, save upon grounds as exist at law for the revocation of any contract. Such submission or contract may include question arising out of valuations, appraisals or other controversies which may be collateral, incidental, precedent or subsequent to any issue between the parties. ... Sec. 21 of the same rules, says: Items which have been the subject of material alteration or items bearing forged endorsement when such endorsement is necessary for negotiation shall be returned by direct presentation or demand to the Presenting Bank and not through the regular clearing house facilities within the period prescribed by law for the filing of a legal action by the returning bank/branch, institution or entity sending the same. (Emphasis supplied) Viewing these provisions the conclusion is clear that the PCHC Rules and Regulations should not be interpreted to b e applicable only to checks which are negotiable instruments but also to non-negotiable instruments and that the PCHC has jurisdiction over this case even as the checks subject of this litigation are admittedly non-negotiable. Moreover, petitioner is estopped from raising the defense of non-negotiability of the checks in question. It stamped its guarantee on the back of the checks and subsequently presented these checks for clearing and it was on the basis of these endorsements by the petitioner that the proceeds were credited in its clearing account. The petitioner by its own acts and representation can not now deny liability because it assumed the liabilities of an endorser by stamping its guarantee at the back of the checks. The petitioner having stamped its guarantee of "all prior endorsements and/or lack of endorsements" (Exh. A-2 to F-2) is now estopped from claiming that the checks under consideration are not negotiable instruments. The checks were accepted for deposit by the petitioner stamping thereon i ts guarantee, in order that it can clear the said checks with the respondent bank. By such deliberate and positive attitude of the petitioner it has for all legal intents and purposes treated the said cheeks as negotiable instruments and accordingly assumed the warranty of the endorser when it stamped its guarantee of prior endorsements at the back of the checks. It led the said respondent to believe that it was acting as endorser of the checks and on the strength of this guarantee said respondent cleared the checks in question and credited the account of the petitioner. Petitioner is now barred from taking an opposite posture by claiming that the disputed checks are not negotiable instrument. This Court enunciated in Philippine National Bank vs. Court of Appeals 5 a point relevant to the issue when it stated the doctrine of estoppel is based upon the grounds of public policy, fair dealing, good faith and justice and its purpose is to forbid one to speak against his own act, representations or commitments to the injury of one to whom they were directed and who reasonably relied thereon. A commercial bank cannot escape the liability of an endorser of a check and which may turn out to be a forged endorsement. Whenever any bank treats the signature at the back of the checks as endorsements and thus logically guarantees the same as such there can be no doubt said bank has considered the checks as negotiable. Apropos the matter of forgery in endorsements, this Court has succinctly emphasized that the collecting bank or last endorser generally suffers the loss because it has the duty to ascertain the genuineness of all prior endorsements considering that the act of presenting the check for payment to the drawee is an assertion that the party making the presentment has done its duty to ascertain the genuineness of the endorsements. This is laid down in the case of PNB vs. National City Bank. 6 In another case, this court held that if the drawee-bank discovers that the signature of the payee was forged after it has paid the amount of the check to the holder thereof, it can recover the amount paid from the collecting bank. 7 A truism stated by this Court is that — "The doctrine of estoppel precludes a party from repudiating an obligation voluntarily assumed after having accepted benefits therefrom. To countenance such repudiation would be contrary to equity and put premium on fraud or misrepresentation". 8 We made clear in Our decision in Philippine National Bank vs. The National City Bank of NY & Motor Service Co. that: Where a check is accepted or certified by the bank on which it is drawn, the bank is estopped to deny the genuineness of the drawers signature and his capacity to issue the i nstrument. If a drawee bank pays a forged check which was previously accepted or certified by the said bank, it can not recover from a holder who did not participate in the forgery and did not have actual notice thereof. The payment of a check does not include or imply its acceptance in the sense that this word is used in Section 62 of the Negotiable Instruments Act. 9 The point that comes uppermost is whether the drawee bank was negligent in failing to discover the alteration or the forgery. Very akin to the case at bar is one which involves a suit filed by the drawer of checks against the collecting bank and this came about in Farmers State Bank 10 where it was held: A cause of action against the (collecting bank) in favor of the appellee (the drawer) accrued as a re sult of the bank breaching its implied warranty of the genuineness of the indorsements of the name of the payee by bringing about the presentation of the checks (to the drawee bank) and collecting the amounts thereof, the right to enforce that cause of action was not destroyed by the circumstance that another cause of action for the recovery of the amounts paid on the checks would have accrued in favor of the appellee against another or to others than the bank if when the checks were paid they have been indorsed by the payee. (United States vs. National Exchange Bank, 214 US, 302, 29 S CT665, 53 L. Ed 1006, 16 Am. Cas. 11 84; Onondaga County Savings Bank vs. United States (E.C.A.) 64 F 703) Section 66 of the Negotiable Instruments ordains that:
Every indorser who indorsee without qualification, warrants to all subsequent holders in due course' (a) that the instrument is genuine and in all respects what it purports to be; (b) that he has good title to it; (c) that all prior parties have capacity to contract; and (d) that the instrument is at the time of his indorsement valid and subsisting. 11 It has been enunciated in an American case particularly in American Exchange National Bank vs. Yorkville Bank12 that: "the drawer owes no duty of diligence to the collecting bank (one who had accepted an altered check and had paid over the proceeds to the depositor) except of seasonably discovering the alteration by a comparison of its returned checks and check stubs or other equivalent record, and to inform the drawee thereof." In this case it was further held that: The real and underlying reasons why negligence of the drawer constitutes no defense to the collecting bank are that there is no privity between the drawer and the collecti ng bank (Corn Exchange Bank vs. Nassau Bank, 204 N.Y.S. 80) and the drawer owe to that bank no duty of vigilance (New York Produce Exchange Bank vs. Twelfth Ward Bank, 204 N.Y.S. 54) and no act of the collecting bank is induced by any act or representation or admission of the drawer (Seaboard National Bank vs. Bank of America (supra) and it follows that negligence on the part of the drawer cannot create any liability from it to the collecting bank, and the drawer thus is neither a necessary nor a proper party to an action by the drawee bank against such bank. It is quite true that depositors in banks are under the obligation of examining their passbooks and returned vouchers as a protection against the payment by the depository bank against forged checks, and negligence in the performance of that obligation may relieve that bank of liability for the repayment of amounts paid out on forged checks, which but for such negligence it would be bound to repay. A leading case on that subject is Morgan vs. United States Mortgage and Trust Col. 208 N.Y. 218, 101 N.E. 871 Amn. Cas. 1914D, 462, L.R.A. 1915D, 74. Thus We hold that while the drawer generally owes no duty of diligence to the collecting bank, the law imposes a duty of diligence on the collecting bank to scrutinize checks deposited with it for the purpose of determining their genuineness and regularity. The collecting bank being primarily engaged in banking holds itself out to the public as the expert and the law holds it to a high standard of conduct. And although the subject checks are non-negotiable the responsibility of petitioner as indorser thereof remains. To countenance a repudiation by the petitioner of its obligation would be contrary to equity and would deal a negative blow to the whole banking system of this country. The court reproduces with approval the following disquisition of the PCHC in its decision — II. Payments To Persons Other Than The Payees Are Not Valid And Give Rise To An Obligation To Return Amounts Received Nothing is more clear than that neither the defendant's depositor nor the defendant is entitled to receive payment payable for the Checks. As the checks are not payable to defendant's depositor, payments to persons other than payees named therein, their successor-in-interest or any person authorized to receive payment are not valid. Article 1240, New Civil Code of the Philippines unequivocably provides that: "Art. 1240. Payment shall be made to the person in whose favor the obligation has been constituted, or his successo-in-interest, or any person authorized to receive it. " Considering that neither the defendant's depositor nor the defendant is entitled to receive payments for the Checks, payments to any of them give rise to an obligation to return the amounts received. Section 2154 of the New Civil Code mandates that: Article 2154. If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises. It is contended that plaintiff should be held responsible for issuing the Checks notwithstanding that the underlying transactions were fictitious This contention has no basis in our jurisprudence. The nullity of the underlying transactions does not diminish, but in fact strengthens, plaintiffs right to recover from the defendant. Such nullity clearly emphasizes the obligation of the payees to return the proceeds of the Checks. If a failure of consideration is sufficient to warrant a finding that a payee is not entitled to payment or must return payment already made, with more reason the defendant, who is neither the payee nor the person authorized by the payee, should be compelled to surrender the proceeds of the Checks received by it. Defendant does not have any title to the Checks; neither can it claim any derivative t itle to them. III. Having Violated Its Warranty On Validity Of All Endorsements, Collecting Bank Cannot Deny liability To Those Who Relied On Its Warranty In presenting the Checks for clearing and for payment, the defendant made an express guarantee on the validity of "all prior endorsements." Thus, stamped at the bank of the checks are the defendant's clear warranty: ALL PRIOR ENDORSEMENTS AND/OR LACK OF ENDORSEMENTS GUARANTEED. Without such warranty, plaintiff would not have paid on the checks. No amount of legal jargon can reverse the clear meaning of defendant's warranty. As the warranty has proven to be f alse and inaccurate, the defendant is liable for any damage arising out of the falsity of its representation. The principle of estoppel effectively prevents the defendant from denying liability for any damages sustained by the plaintiff which, relying upon an action or declaration of the defendant, paid on the Checks. The same principle of estoppel effectively prevents the defendant from denying the existence of the Checks. Whether the Checks have been issued for valuable considerations or not is of no seri ous moment to this case. These Checks have been made the subject of contracts of endorsement wherein the defendant made expressed warranties to induce payment by the drawer of the Checks; and the defendant cannot now refuse liability for breach of warranty as a consequence of such forged endorsements. The defendant has falsely warranted in favor of plaintiff the validity of all endorsements and the genuineness of the cheeks in all respects what they purport to be. The damage that will result if judgment is not rendered for the plaintiff is irreparable. The collecting bank has privity with the depositor who is the principal culprit in this case. The defendant knows the depositor; her address and her history, Depositor is defendant's client. It has taken a risk on its depositor when it allowed her to collect on the crossed-checks. Having accepted the crossed checks from persons other than the payees, the defendant is guilty of negligence; the risk of wrongful payment has to be assumed by the defendant. On the matter of the award of the interest and attorney's fees, the Board of Directors finds no reason to reverse the decision of the Arbiter. The defendant's failure to reimburse the plaintiff has constrained the plaintiff to regular the services of counsel in order to protect its interest notwithstanding that plaintiffs claim is plainly valid just and demandable. In addition, defendant's clear obligation is to reimburse plaintiff upon direct presentation of the checks; and it is undenied that up to this time the defendant has failed to make such reimbursement. WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as to costs. The decision of the respondent court of 24 March 1986 and its order of 3 June 1986 are hereby declared to be immediately executory. SO ORDERED.
Teehankee, C.J., Narvasa, Cruz and Paras, JJ., concur. G.R. No. 78687 January 31, 1989 ELENA SALENILLAS AND BERNARDINO SALENILLAS, petitioners, vs. HONORABLE COURT OF APPEALS and HONORABLE RAYMUNDO SEVA, JUDGE OF BRANCH 38 OF THE REGIONAL TRIAL COURT OF CAMARINES NORTE and WILLIAM GUERRA, respondents. Jose L. Lapak for petitioners. Jose T. Atienza for private respondent.
SARMIENTO, J.: This petition for review on certiorari which seeks the reversal and setting aside of the decision 1 of the Court of Appeals 2 dismissing the petition for certiorari against Judge Raymundo Seva of the Regional Trial Court of Camarines Norte and the private respondent, William Guerra, involves a pure question of law i.e., the coverage and application of Section 119 of Commonwealth Act No. 141, as amended, known otherwise as the Public Land Act. The facts are undisputed. The property subject matter of the case was formerly covered by Original Certificate of Title No. P-1248, issued by virtue of Free Patent Application No. 192765, in favor of the spouses, Florencia H. de Enciso and Miguel Enciso. The said original certificate of title was inscribed in the Registration Book for the Province of Camarines Norte on December 10, 1961. On February 28, 1970, the patentees, the Enciso spouses, by an Absolute Deed of Sale, sold the property in favor of the petitioners, the spouses Elena Salenillas and Bernardino Salenillas for a consideration of P900.00. Petitioner Elena Salenillas is a daughter of the Encisos. As a result of the aforementioned sale, Transfer Certificate of Title No. T-8104 of the Register of Deeds of Camarines Norte was issued in the name of the Salenillas, cancelling Original Certificate of Title No. P-1248. On June 30, 1971, the petitioners mortgaged the property now covered by T.C.T. No. T-8104 with the Rural Bank of Daet, Inc. The mortgage was subsequently released on November 22, 1973 after the petitioners paid the amount of P1,000.00. Later, or on December 4, 1975, the petitioners again mortgaged the property, this time in favor of the Philippine National Bank Branch, Daet, Camarines Norte as security for a loan of P2,500.00. For failure of the petitioners to pay their loan, extrajudicial foreclosure proceeding, pursuant to Act No. 3135, was instituted by the Philippine National Bank against the mortgage and the property was sold at a public auction held on February 27, 1981. The private respondent, William Guerra, emerged as the highest bidder in the said public auction and as a result thereof a "Certificate of Sale" was issued to him by the Ex Officio Provincial Sheriff of Camarines Norte. Ultimately, on July 12, 1983, a "Sheriff's Final Deed" was executed in favor of the private respondent. On August 17,1983, the Philippine National Bank filed with the Regional Trial Court of Camarines Norte at Daet, a motion for a writ of possession. The public respondent, Judge Raymundo Seva of the trial court, acting on the motion, issued on September 22, 1983 an order for the issuance of a writ of possession in favor of the private respondent. When the deputy sheriff of Camarines Norte however, attempted on November 17, 1983, to place the property in the possession of the private respondent, the petitioners refused to vacate and surrender the possession of the same and instead offered to repurchase it under Section 119 of the Public Land Act. On August 15, 1984, another motion, this time for the i ssuance of an alias writ of possession was filed by the private respondent with the trial court. The petitioners, on August 31, 1984, opposed the private respondents' motion and instead made a formal offer to repurchase the property. Notwithstanding the petitioners' opposition and formal offer, the trial court judge on October 12, 1984 issued the alias writ of possession prayed for the private respondent. The petitioners moved for a reconsideration of the order but their motion was denied. Undeterred by their initial setback, the petitioners elevated the case to the respondent Court of Appeals by way of a petition for certiorari claiming that the respondent trial court judge acted with grave abuse of discretion in issuing the order dated October 12, 1984 granting the writ of possession, and the order dated October 22, 1984, denying their motion for reconsider consideration. In a resolution dated January 23, 1985, the respondent appellate court gave due course to the petition; required the parties to submit simultaneous memoranda in support to their respective positions; and restrained the trial court and the private respondent from executing, implementing or otherwise giving effect to the assailed writ of possession until further orders from the court. 3 However, in a decision promulgated on September 17, 1986, the respondent Court of Appeals dismissed the case for lack of merit. According to the appellate court: It must be noted that when the original owner, Florencia H. Enciso whose title, OCT No. P-1248, was issued on August 9, 1961, executed a deed of absolute sale on February 28, 1970 of the property covered by said title to spouses Elena Salenillas and Bernardino Salenillas, the five year period to repurchase the property provided for in Section 119 of Commonwealth Act No. 141 as amended could have already started. Prom this fact alone, the petition should have been dismissed. However, granting that the transfer from parent to child for a nominal sum may not be the "conveyance" contemplated by the law. We will rule on the issue raised by the petitioners. 4 xxx xxx xxx Applying the case of Monge, et al. vs. Angeles, et al., 5 the appellate court went on to hold that the five-year period of the petitioners to repurchase under Section 119 of the Public Land Act had already prescribed. The point of reckoning, ruled the respondent court in consonance with Monge is from the date the petitioners mortgaged the property on December 4, 1973. Thus, when the petitioners made their formal offer to repurchase on August 31, 1984, the period had clearly expired. In an effort to still overturn the decision, the petitioners moved for reconsideration. Their motion apparently went for naught because on May 7, 1987, the respondent appellate court resolved to deny the same. Hence, this petition. Before us, the petitioners maintain that contrary to the rulings of the courts below, their r ight to repurchase within five years under Section 119 of the Public Land Act has not yet prescribed. To support their contention, the petitioners cite the cases of Paras vs. Court of Appeals 6 and Manuel vs. Philippine National Bank, et al. 7 On the other side, the private respondent, in support of the appellate court's decision, states that the sale of the contested property by the patentees to the petitioners disqualified the latter from being legal heirs vis-a-vis the said property. As such, they (the petitioners) no longer enjoy the right granted to heirs under the provisions of Section 119 of the Public Land Act. 8 In fine, what need be determined and resolved here are: whether or not the petitioners have the right to repurchase the contested property under Section 119 of the Public Land Act; and assuming the answer to the question is in the affirmative, whether or not their right to repurchase had already prescribed. We rule for the petitioners. They are granted by the law the right to repurchase their property and their right to do so subsists. Section 119 of the Public Land Act, as amended, provides in full: Sec. 119. Every conveyance of land acquired under the free patent or homestead provisions, when proper, shall be subject to repurchase by the applicant, his widow, or legal heirs within a period of five years from the date of the conveyance. From the foregoing legal provision, it is explicit that only three classes of persons are bestowed the right to repurchase — the applicant-patentee, his widow, or other legal heirs. Consequently, the contention of the private respondent sustained by the
respondent appellate court that the petitioners do not belong to any of those classes of repurchasers because they acquired the property not through inheritance but by sale, has no legal basis. The petitioners-spouses are the daughter and son-in-law of the Encisos, patentees of the contested property. At the very least, petitioner Elena Salenillas, being a child of the Encisos, is a "legal heir" of the latter. As such, and even on this score alone, she may therefore validly repurchase. This must be so because Section 119 of the Public Land Act, in speaking of "legal heirs," makes no distinction. Ubi lex non distinguit nec nos distinguere debemos. Moreover, to indorse the distinction made by the private respondent and the appellate court would be to contravene the very purpose of Section 119 of the Public Land Act which is to give the homesteader or patentee every chance to preserve for himself and his family the land that the State had gratuitously given him as a reward for his labor in clearing and cultivating it. 9 Considering that petitioner Salenillas is a daughter of the spouses Florencia H. Enciso and Miguel Enciso, there is no gainsaying that allowing her (Elena) and her husband to repurchase the property would be more i n keeping with the spirit of the law. We have time and again said that between two statutory interpretations, that which better serves the purpose of the law should prevail. Guided by the same purpose of the law, and proceeding to the other issue here raised, we rule that the five-year period for the petitioners to repurchase their property had not yet prescribed. The case of Monge et al. vs. Angeles, et al., 10 cited as authority by the respondent Court of Appeals is inapplicable to the present controversy. The facts obtaining there are substantially different from those in this case. In Monge the conveyance involved was a pacto de retro sale and not a foreclosure sale. More importantly, the question raised there was whether the fiveyear period provided for in Section 119 "should be counted from the date of the sale even if the same is with an option to repurchase or from the date the ownership of the land has become consolidated in favor of the purchaser because of the homesteader's failure to redeem it. 11 It is therefore understandable why the Court ruled there as it did. A sale on pacto de retro immediately vests title, ownership, and, generally possession over the property on the vendee a retro, subject only to the right of the vendor a retro to repurchase within the stipulated period. It is an absolute sale with a resolutory condition. The cases 12 pointed to by the petitioner in support of their position, on the other hand, present facts that are quite identical to those in the case at bar. Both cases involved properties the titles over which were obtained either through homestead or free patent. These properties were mortgaged to a bank as collateral for loans, and, upon failure of the owners to pay their indebtedness, the mortgages were foreclosed. In both instances, the Court ruled that the five-year period to. repurchase a homestead sold at public auction or foreclosure sale under Act 3135 begins on the day after the expiration of the period of redemption when the deed of absolute sale is executed thereby formally transferring the property to the purchaser, and not otherwise. Taking into account that the mortgage was foreclosed and the mortgaged property sold at a public auction to the private respondent on February 27, 1981, with the "Sheriff's Final Deed" issued on July 12, 1983, the two offers of the petitioners to repurchase the first on November 17, 1983, and the second, formally, on August 31, 1984 were both made within the prescribed five-year period. Now, as regards the redemption price, applying Sec. 30 of Rule 39 of the Revised Rules of Court, the petitioners should reimburse the private respondent the amount of the purchase price at the public auction plus interest at the rate of one per centum per month up to November 17, 1983, together with the amounts of assessments and taxes on the property that the private respondent might have paid after purchase and interest on the last named amount at the same rate as that on the purchase price. 13 WHEREFORE, the petition is GRANTED. The Decision dated September 17, 1986, and the Resolution dated May 7, 1987 of the Court of Appeals, and the Orders dated September 22, 1983, October 12, 1984, and October 22, 1984 of the Regional Trial Court of Daet, Camarines Norte, are hereby REVERSED and SET ASIDE, and another one ENTERED directing the private respondent to reconvey the subject property and to execute the corresponding deed of reconveyance therefor in favor of the petitioners upon the return to him by the latter of the purchase price and the amounts, if any, of assessments or taxes he paid plus interest of one (1%) per centum per month on both amounts up to November 17, 1 983. No costs. SO ORDERED. Melencio-Herrera (Chairperson), Paras, Padilla and Regalado, JJ ., concur
[G.R. No. L-27489. April 30, 1970.] LEONORA TANTOY VDA. DE MACABENTA, for herself and in behalf of her minor child, RAQUEL MACABENTA, claimants-appellees, v. DAVAO STEVEDORE TERMINAL COMPANY, Respondent-Appellant . Peregrino M. Andres for Claimants-Appellees. H. A. Cabarroguis & Associates for Respondent-Appellant . SYLLABUS
1. LABOR AND SOCIAL LEGISLATION; WORKMEN’S COMPENSATION ACT; DEPENDENTS OF INJURED EMPLOYER. — From the express language of the Workmen’s Compensation Act, a widow living with the deceased or actually dependent upon him totally or partly as well as her daughter, if under 18 years of age or incapable of supporting him or herself, a nd unmarried, whether or not actually dependent upon the deceased, are considered dependents. 2. ID.; ID.; ID.; INSTANT CASE. — Claimant here is clearly the widow of the deceased Conrado Macabenta. It is true that the marriage took place after the fatal accident but there was no question that at the time of his death she was marked to him. 3. STATUTORY CONSTRUCTION; WHERE LAW IS CLEAR; DUTY OF COURT TO APPLY THE LAW TO FACTS AS FOUND. — Where the law is clear, our duty is equally plain. We must apply it to the facts as found. What is more, we have taken pains to defeat any evasion of its literal language by rejecting an interpretation, even if not totally devoid of plausibility, but likely to attach to it a significance different from that intended by the lawmakers. A paraphrases of an aphorism from Holmes is not inappropriate. there can always occur to intelligence hostile to a piece of legislation a misinterpretation that may, without due reflection, be considered not too far-fetched. 4. ID.; ID.; SETTLED RULE. — The Court has constantly held from the early cases of Ty Sue v. Hord, 12 Phil. 485, a 1909 decision, in United States v. Toribio, 15 Phil. 85 and again in Riera v . Palmori, 40 Phil. 105 (1919) that , assuming a choice is necessary between conflicting theories, that which best conforms to the language of the statute and its purpose should prevail and that no construction is to be adopted that would "tend to defeat the purpose and object of the legislator." cralaw virtua1aw library
5. ID.; ID.; WHERE POLICY OF LAW IS CLEAR; DUTY COURT TO GIVE EFFECT. — Once the policy of purpose of the law has been ascertained, effect should be given to it by the judiciary. Even if honest doubts could be entertained, therefor, as to the meaning
of the statutory provisions, still respect for such a basic doctrine calls for a rejection of the plea of the Davao Stevedore Te rminal Company. 6. LABOR AND SOCIAL LEGISLATION; WORKMEN’S COMPENSATION ACT; INTERPRETATION AND CONSTRUCTION, TO BE IN ACCORDANCE WITH CONSTITUTIONAL MANDATE. — "To state the constructions sought to be fastened on the clear and explicit language of the statute is to reject it. It comes into collision with the constitutional command pursuant to the social justice principle that the government extend protection to labor." How could such an intent then be imputed to the legislative body. No such suspicious ought to be entertained that it was contemplated by our lawmakers that any provision of the Workmen’s Compensation Act could be so worded as to deny protection to the laboring elements and their dependents and thus frustrate the constitutional objective of social justice. 7. ID.; ID.; WORKMEN’S COMPENSATION COMMISSION; FI NDINGS OF FACT IT BASED ON SUBSTANTIAL EVIDENCE, NOT DISTURBED ON APPEAL; INSTANT CASE. — The alleged error that the accident resulting in the death of Condrado Macabenta could not be considered as having arisen out of and in the course of employment is not to be taken too seriously. The facts as set forth in the decision, which must be accepted by us in view of their being based on substantial evidence argue against the condensation of the Davao Stevedore Terminal Company. 8. ID.; ID.; APPEAL FROM DECISIO N OF THE WORKMEN’S COMPENSATION COMMISSION TO SUPREME COURT ASCERTAINTMENT OF CREDIBILITY AND WEIGHT OF CONFLICTING EVIDENCE, BEYOND AUTHORITY IN APPEALS BY CERTIORARI. — The task of ascertaining the credibility and weight of conflicting evidence is, however, beyond the province of our authority in appeals bycertiorari . Even if the possibility that the Commission’s conclusions were erroneous could not be ruled ou t, still, to borrow the language of justice Dizon in Philippine Rabbit Bus Lines, Inc. v. Workmen’s Compensation Commission, ‘such errors would constitute mere errors of judgment but do not involve any grave abuse of discretion on its part.’
DECISION
FERNANDO, J.:
The success of the employer Davao Stevedore Terminal C ompany in imparting plausibility to the novel question raised as to whether or not the widow of a deceased employee whose marriage occurred after the accident as well as the posthumous child could be considered dependents within the meaning of the Workmen’s Compensation Act may be gauged by the fact that we gave due course to the petition for the review o f a decision of the Workmen’s Compensation Commission answering the question in th e affirmative and sustaining the right to compensation of the claimant Leonora Tantoy Vda. de Macabenta for herself and in behalf of her minor child, Raquel Macabenta. After hearing the parties and in the right of the language of the law, its manifest purpose, and the constitutional provisions on social justice and protection to labor, we answer the question similarly. We affirm the appealed decision of the Workmen’s Compensation Commission. In the decision rendered by the then Chairman of the Commission, Nieves Baens del Rosario, dated September 27, 1966, it is stated that there is no dispute "that at the time that the decedent met the vehicular accident on September 13, 1961 which led to his death on September 29, 1961, the claimant-widow was not yet married to the decedent although they had already been living together as husband and wife for the past three months. However. on the day following the accident, they were lawfully wedded in a marriage ceremony solemnized at San Pedro Hospital in D avao City where the deceased was hospitalized up to his death. It is noteworthy that the marriage was facilitated through the intercession of the general manager of the respondent company." 1 The decision likewise noted that the claimant widow gave birth on April 8, 1962 to the posthumous daughter of the deceased w ho was given the name Raquel Tantoy Macabenta. As to how the deceased Conrado Macabenta met his accident, the decision, after stating that the deceased was a laborer in the sawmill of the Davao Stevedore Terminal Company at Manay, Panabo, Davao, about 48 kilometers from his residence in Davao City, went on as follows: "Although some sort of quarters were provided by the respondent to its employees at the sawmill, many of them apparently preferred to commute, and the deceased in particular went home about three times a week. While the respondent, through its lone witness and at the same time production manager, Sergio Dalisay, disclaimed the claimant’s declarations that the company provided a service pickup to transport its employees to and from work, the synthesis of the very same testimonial evidence does not support this denial, but on the contrary tends to bring out the fact that the respondent did furnish transportation." 2 As a result, it reversed the finding of the then acting referee of its regional office in Davao Ci ty and awarded to the claimant widow for herself and in behalf of her minor child the amount of P2,708.00 as compensation and the sum of P270.80 as attorney’s fees. Hence, this petition for review, which, as noted, w as given due course primarily due to the question raised bein g one of first impression. As announced at the opening of this opinion, we uphold the Workmen’s Compensation Commission. 1. From the express language of the Workmen’s Compensation Act, a widow living with the deceased or actually dependent upon him totally or partly as well as her daughter, if under 18 years of age or incapable of supporting him or herself, and unmarried, whether or not actually dependent upon the deceased are considered depe ndents. 3 Claimant here is clearly the widow of the deceased Conrado Macabenta. It is true that the marriage took place after the fatal accident but there w as no question that at the time of his death she was married to him. She, therefore, comes entirely within the letter of the law. Nor can there be any d oubt that the child, Raquel Macabenta, also falls within the words the Act employs. As set forth in the decision, while the marriage took place on Sept. 14, 1961, the widow and the deceased had already been living together as husband and w ife the preceding three months. The child born of such relationship, later legalized, is, as made clear in the decision, the posthumous daughter of the deceased. What the employer Davao Stevedore Terminal Company seems bent in ignoring is that our Civil Code, in no uncertain terms, considers a conceived child born for all purposes that are favorable to her provided the birth is attended with the conditions specified, namely, that she is alive at the time she is completely delivered from the mother’s womb. 4 Here, fortunately, the child has survived the ordeal of the loss of the one called upon to support her, her father, who, unfortunately however, met his death before her birth. Time and time again, we have stressed that where the law is clear, our duty is equally plain. We must apply it to the facts as found. 5 What is more, we have taken pains to defeat any evasion of its literal language by rejecting an interpretation, even if not totally devoid of plausibility, but likely to attach to it a significance different from that intended by the lawmakers. A paraphrase of an aphorism from Holmes is not inappropriate. There can always occur to an intelligence hostile to a piece of legislation a misinterpretation that may, without due reflection, be considered not too far-fetched. The employer in this case, without impugning its motives, must have succumbed to such a temptation, quite understandable but certainly far from justifiable. It is quite obvious then why we find its stand devoid of merit.
2. Our conclusion likewise finds support in the fundamental principle that once the policy or purpose of the law has been ascertained, effect should be given to it by the judiciary. 6 Even if honest doubts could be entertained, therefore, as to the meaning of the statutory provisions, still respect for such a basic doctrine calls for a rejection of the plea of the Davao Stevedore Terminal Company. We have never deviated from our constant holding from Ty Sue v. Hord, 7 a 1909 decision, that, assuming a choice is necessary between conflicting theories, that which best conforms to the language of the statute and its purpose should prevail. Again, as far back as United States v. Toribio, 8 decided the next year, we made unmistakable our view that no construction is to be adopted that would bend "to defeat the purpose and object of the legislator." We made use of an expression almost identical in Riera v. Palmaroli 9 with our warning against so narrowly interpreting a statute "as to defeat the manifest purpose of the legislator." The employer in this case should have been well advised to take into consideration the teachings of the above cases before it sought to press upon us the desirability of imparting to the applicable statutory language a meaning that would render fruitless the purpose so clearly evident on the face of the Workmen’s Compensation Act. 3. There is still another avenue of approach that similarly calls for the aff irmance of the decision of the Workmen’s Compens ation Commission now on appeal. This is apparent from an excerpt from a recent case of Automotive Parts & Equipment Company, Incorporated v. Lingad: 10 "To state the construction sought to be fastened on the clear and explicit language of the statute is to reject it. It comes into collision with the constitutional command pursuant to the social justice principle that the government extend protection to labor." How could such an intent then be imputed to the legislative body. No such suspicion ought to be entertained that it was contemplated by our lawmakers that any provision of the Workmen’ s Compensation Act could be so worded as to deny protection to the laboring elements and their dependents and thus frustrate the constitutional objective of social justice. To quote from the Lingad case anew: "For it is undeniable that every statute, much more so o ne arising from a legislative implementation of a constitutional mandate, must be so construed that no question as to its conformity with what the fundamental law requires need arise. 4. The basic question in this petition for review thus disposed of, there is nothing to stand in the way of the affirmance of the decision now on appeal. The alleged error that the accident resulting in the death of Conrado Macabenta could not be considered as having arisen out of and in the course of employment is not to be taken too seriously. The facts as set forth in the decision, which must be accepted by us in view of their being based on substantial evidence argue against the contention of the Davao Stevedore Terminal Company. As we had occasion to state only last mo nth in B. F. Goodrich Philippines, Inc. v. Acebedo: 11 "Nor can the conclusion reached by respondent Commission be repudiated unless ‘on a clear showing of failure to consider the evide nce on record or failure to consider fundamental and patent logical relationships in the e vidence, amounting to a clear travesty of justice or grave abuse of discretion.’ What was said by us in Basaysay v. Workmen’s Compensation Commission, through the present Chief Justice, bears repeating: ‘The task of ascertaining th e credibility and weight of conflicting evidence, is, however, beyond the province of our authority in appeals by certiorari .’ Even if the possibility that the Commission’s conclusions were erroneous could not be ruled out, still, to borrow the language of Justice Dizon in Philippine Rabbit Bus Lines, Inc. v. Workmen’s Compensation Commission.’such errors would constitute mere errors of judgment but do not involve any grave abuse of discretion on its part.’" WHEREFORE, the decision of the Workmen’s Compensation Commission of September 27, 1966 is affirmed. With costs against respondent Davao Stevedore Terminal Company. Concepcion,
C.J.,
Reyes, J.B.L., Castro, Zaldivar, Teehankee and Villamor, JJ., concur.
Dizon and Makalintal, JJ., took no part
[G.R. Nos. L-32613-14 December 27, 1972 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy Reyes alias "Taba,"respondents. Solicitor R. Mutuc for respondent Feliciano Co. Jose W. Diokno for respondent Nilo Tayag.
CASTRO, J.:p I. Statement of the Case Posed in issue in these two cases is the constitutionality of the Anti-Subversion Act, 1 which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any person who "knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member" of the Party or of any other similar "subversive" organization. On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed against the respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted a preliminary investigation and, finding a prima facie case against Co, directed the Government prosecutors to file the corresponding information. The twice-amended information, docketed as Criminal Case No. 27, recites: That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, feloniously became an officer and/or ranking leader of the Communist Party of the Philippines, an outlawed and i llegal organization aimed to overthrow the Government of the Philippines by means of force, violence, deceit, subversion, or any other illegal means for the purpose of establishing in the Philippines a totalitarian regime and placing the government under the control and domination of an alien power, by being an instructor in the Mao Tse Tung University, the training school of recruits of the New People's Army, the military arm of the said Communist Party of the Philippines. That in the commission of the above offense, the following aggravating circumstances are present, to wit: (a) That the crime has been committed in contempt of or with insult to public authorities; (b) That the crime was committed by a band; and afford impunity. (c) With the aid of armed men or persons who insure or afford impunity. Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder. Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the respondent Nilo Tayag and five others with subversion. After preliminary investigation was had, an information was filed, which, as amended, reads: The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated by the Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac, pursuant to the Order dated June 5, above e ntitled case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias
COMMANDER MELODY and several JOHN DOES, whose identities are still unknown, for violation of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law, committed as follows: That in or about March 1969 and for sometime prior thereto and thereafter, in the Province of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in the Philippines, the above-named accused knowingly, willfully and by overt acts organized, joined and/or remained as offices and/or ranking leaders, of the KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act No. 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto, knowingly, willfully and by over acts joined and/or remained as a member and became an officer and/or ranking leader not only of the Communist Party of the Philippines but also of the New People's Army, the military arm of the Communist Party of the Philippines; and that all the above-named accused, as such officers and/or ranking leaders of the aforestated subversive organizations, conspiring, confederating and mutually helping one another, did then and there knowingly, willfully and feloniously commit subversive and/or seditious acts, by inciting, instigating and stirring the people to unite and r ise publicly and tumultuously and take up arms against the government, and/or engage in rebellious conspiracies and riots to overthrow the government of the Republic of the Philippines by force, violence, deceit, subversion and/or other illegal means among which are the following: 1. On several occasions within the province of Tarlac, the accused conducted meetings and/or seminars wherein the said accused delivered speeches instigating and inciting the people to unite, rise in arms and overthrow the Government of the Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal means; and toward this end, the said accused organized, among others a chapter of the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed purpose of undertaking or promoting an armed revolution, subversive and/or seditious propaganda, conspiracies, and/or riots and/or other illegal means to discredit and overthrow the Government of the Republic of the Philippines and to established in the Philippines a Communist regime. 2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above subversive and/or seditious activities in San Pablo City by recruiting members for the New People's Army, and/or by instigating and inciting the people to organize and unite for the purpose of overthrowing the Government of the Republic of the Philippines through armed revolution, deceit, subversion and/or other illegal means, and establishing in the Philippines a Communist Government. That the following aggravating circumstances attended the commission of the offense: (a) aid of armed men or persons to insure or afford impunity; and (b) craft, fraud, or disguise was employed. On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that (1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the title thereof; and (4) it denied him the equal protection of the laws. Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970, declared the statute void on the grounds that it is a bill of attainder and that it is vague and overboard, and dismissed the informations against the two acc used. The Government appealed. We resolved to treat its appeal as a special civil action for certiorari. II. Is the Act a Bill of Attainder? Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall be enacted."2 A bill of attainder is a legislative act which inflicts punishment without trial. 3 Its essence is the substitution of a legislative for a judicial determination of guilt. 4 The constitutional ban against bills of attainder serves to implement the principle of separation of powers 5 by confining legislatures to rule-making 6 and thereby forestalling legislative usurpation of the judicial function. 7 History in perspective, bills of attainder were employed to suppress unpopular causes and political minorities, 8 and it is against this evil that the constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatizea statute as a bill of attainder. 9 In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder because it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to the freedom and security of the country; its existence, a 'clear, present and grave danger to the security of the Philippines.'" By means of the Act, the trial court said, Congress usurped "the powers of the judge," and assumed "judicial magistracy by pronouncing the guilt of the CCP without any of the forms or safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to be determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of attainder because it has expressly created a presumption of organizational guilt which the accused can never hope to overthrow." 1. When the Act is viewed in its actual operation, it will be seen that it does not specify the Communist Party of the Philippines or the members thereof for the purpose of punishment. What it does is simply to declare the Party to be an organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated in section 4, against membership in the outlawed organization. The term "Communist Party of the Philippines" issued solely for definitional purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any other organization having the same purpose and their successors." Its focus is not on individuals but on conduct. 10 This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder and therefore unconstitutional. Section 504 provided in its pertinent parts as follows: (a) No person who is or has been a member of the Communist Party ... shall serve — (1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization. during or for five years after the termination of his membership in the Communist Party.... (b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not more than one year, or both. This statute specified the Communist Party, and imposes disability and penalties on its members. Membership in the Party, without more, ipso facto disqualifies a person from becoming an officer or a member of the governing body of any labor organization. As the Supreme Court of the United States pointed out: Under the line of cases just outlined, sec. 504 of the Labor Management Reporting and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under the Commerce Clause to enact legislation designed to keep from positions affecting interstate commerce persons who may use of such positions to bring about political strikes. In section 504, however, Congress has exceeded the authority granted it by the Constitution. The statute does not set forth a generally applicable rule decreeing that any person who commits certain acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them likely to initiate political strikes) shall not hold union office, and leaves to courts and juries the job of deciding what persons have committed the specified acts or possessed the specified characteristics. Instead, it designates in no uncertain terms the persons who possess the feared characteristics and therefore cannot hold union office without incurring criminal liability — members of the Communist Party.
Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81 S CT 1357, lend a support to our conclusion. That case involved an appeal from an order by the Control Board ordering the Communist Party to register as a "Communistaction organization," under the Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of "Communist-action organization" which the Board is to apply is set forth in sec. 3 of the Act: [A]ny organization in the United States ... which (i)is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement referred to in section 2 of this title, and(ii) operates primarily to advance the objectives of such world Communist movement... 64 Stat 989, 50 USC sec. 782 (1958 ed.) A majority of the Court rejected the argument that the Act was a bill of attainder, reasoning that sec. 3 does not specify the persons or groups upon which the deprivations setforth in the Act are to be imposed, but instead sets forth a general definition. Although the Board has determined in 1953 that the Communist Party was a "Communist-action organization," the Court found the statutory definition not to be so narrow as to i nsure that the Party would always come within it: In this proceeding the Board had found, and the Court of Appeals has sustained its conclusion, that the Communist Party, by virtud of the activities in which it now engages, comes within the terms of the Act. If the Party should at anytime choose to abandon these activities, after it is once registered pursuant to sec. 7, the Act provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683) Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more, would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing Government by force deceit, and other illegal means and place the country under the control a nd domination of a foreign power. As to the claim that under the statute organizationl guilt is nonetheless imputed despite the requirement of proof of knowing membership in the Party, suffice it to say that is precisely the nature of conspiracy, which has been referred to as a "dragneet device" whereby all who participate in the criminal covenant are liable. The contention would be correct if the statute were construed as punishing mere membership devoid of any specific intent to further the unlawful goals of the Party. 13 But the statute specifically required that membership must be knowing or active, with specific intent to further the illegal objectives of the Party. That is what section 4 means when it requires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfully and by overt acts." 14 The ingredient of specific intent to pursue the unlawful goals of the Party must be shown by "overt acts." 15 This constitutes an element of "membership" distinct from the i ngredient of guilty knowledge. The former requires proof of direct participation in the organization's unlawful activities, while the latter requires proof of mere adherence to the organization's illegal objectives. 2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough to render it a bill of attainder. A statute prohibiting partners or employees of securities underwriting firms from serving as officers or employees of national banks on the basis of a legislative finding that the persons mentioned would be subject to the temptation to commit acts deemed inimical to the national economy, has been declared not to be a bill of attainder. 16 Similarly, a statute requiring every secret, oath-bound society having a membership of at least twenty to register, and punishing any person who becomes a member of such society which fails to register or remains a member thereof, was declared valid even if in its operation it was shown to apply only to the members of the Ku Klux Klan. 17 In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor unions to file with the Department of Labor affidavits of union officers "to the effect that they are not members of the Communist Party and that they are not members of any organization which teaches the overthrow of the Government by force or by any illegal or unconstitutional method," was upheld by this Court. 19 Indeed, it is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial does it become a bill of attainder. 20It is upon this ground that statutes which disqualified those who had taken part in the rebellion against the Government of the United States during the Civil War from holding office, 21 or from exercising their profession, 22 or which prohibited the payment of further compensation to individuals named in the Act on the basis of a finding that they had engages in subversive activities, 23 or which made it a crime for a member of the Communist Party to serve as an officer or employee of a labor union, 24 have been invalidated as bills of attainder. But when the judgment expressed in legislation is so universally acknowledged to be certain as to be "judicially noticeable," the legislature may apply its own rules, and judicial hearing i s not needed fairly to make such determination . 25 In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every secret, oath-bound society with a membership of at least twenty to register, and punishing any person who joined or remained a member of such a society failing to register. While the statute did not specify the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the statute against the claim that it discriminated against the Ku Klux Klan while exempting other secret, oath-bound organizations like masonic societies and the Knights of Columbus, the United States Supreme Court relied on common knowledge of the nature and activities of the Ku Klux Klan. The Court said: The courts below recognized the principle shown in the cases just cited and reached the conclusion that the classification was justified by a difference between the two classes of associations shown by experience, and that the difference consisted (a) in a manifest tendency on the part of one class to make the secrecy surrounding its purpose and membership a cloak for acts and conduct inimical to personal rights and public welfare, and (b) in the absence of such a tendency on the part of the other c lass. In pointing out this difference one of the courts said of the Ku Klux Klan, the principal association in the included class: "It is a matter of common knowledge that this organization functions largely at night, its members disguised by hoods and gowns and doing things calculated to strike terror into the minds of the people;" and later said of the other class: "These organizations and their purposes are well known, many of them having been in existence for many years. Many of them are oath-bound and secret. But we hear no complaint against them regarding violation of the peace or interfering with the rights of others." Another of the courts said: "It is a matter of common knowledge that the association or organization of which the relator is concededly a member exercises activities tending to the prejudice and intimidation of sundry classes of our citizens. But the legislation is not confined to this society;" and later said of the other class: "Labor unions have a recognized lawful purpose. The benevolent orders mentioned in the Benevolent Orders Law have already received legislative scrutiny and have been granted special privileges so that the legislature may well consider them beneficial rather than harmful agencies." The third court, after recognizing "the potentialities of evil in secret societies," and observing that "the danger of certain organizations has been judicially demonstrated," — meaning in that state, — said: "Benevolent orders, labor unions and college fraternities have existed for many years, and, while not immune from hostile criticism, have on the whole justified their existence." We assume that the legislature had before it such information as was readily available including the published report of a hearing, before a committee of the House of Representatives of the 57th Congress relating to the formation, purposes and activities of the Klu Klux Klan. If so it was advised — putting aside controverted evidence — that the order was a revival of the Ku Klux Klan of an earlier time with additional features borrowed from the Know Nothing and the A. P. A. orders of other periods; that its memberships was limited to native-born, gentile, protestant whites; that in part of its constitution and printed creed it
proclaimed the widest freedom for all and full adherence to the Constitution of the United States; in another exacted of its member an oath to shield and preserve "white supremacy;" and in still another declared any person actively opposing its principles to be "a dangerous ingredient in the body politic of our country and an enemy to the weal of our national commonwealth;" that it was conducting a crusade against Catholics, Jews, and Negroes, and stimulating hurtful religious and race prejudices; that it was striving for political power and assuming a sort of guardianship over the administration of local, state and national affairs; and that at times it was taking into its own hands the punishment of what some of its members conceived to be crimes.27 In the Philippines the character of the Communist Party has been the object of continuing scrutiny by this Court. In 1932 we found the Communist Party of the Philippines to be an illegal association. 28 In 1969 we again found that the objective of the Party was the "overthrow of the Philippine Government by armed struggle and to establish in the Philippines a communist form of government similar to that of Soviet Russia and Red China." 29 More recently, inLansang vs. Garcia, 30 we noted the growth of the Communist Party of the Philippines and the organization of Communist fronts among youth organizations such as the Kabataang Makabayan (KM) and the emergence of the New People's Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about the existence of a sizeable group of men who have publicly risen in arms to overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines. 3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was ... doubly objectionable because of its ex post factofeatures. This is the historic explanation for uniting the two mischiefs in one clause — 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill of attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that it c annot be a bill of attainder." 31 Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the Charter of the City of Los Angeles which provided: ... [N]o person shall hold or retain or be eligible for any public office or employment in the service of the City of Los Angeles, in any office or department thereof, either elective or appointive, who has within five (5) years prior to the effective date of this section advised, advocated, or taught, or who may, after this section becomes effective, become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches or has within said period of five (5) years advised, advocated, or taught the overthrow by force or violence of the Government of the United States of America or of the State of California. In upholding the statute, the Court stressed the prospective application of the Act to the petitioner therein, thus: ... Immaterial here is any opinion we might have as to the charter provision insofar as it purported to apply restrospectively for a five-year period to its effective date. We assume that under the Federal Constitution the Charter Amendment is valid to the extent that it bars from the city's public service persons who, subsequently to its adoption in 1941, advise, advocate, or reach the violent overthrow of the Government or who are or become affiliated with any group doing so. The provisions operating thus prospectively were a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty to the State and the United States. ... Unlike the provisions of the charter and ordinance under which petitioners were removed, the statute in the Lovett case did not declare general and prospectively operative standards of qualification and eligibility for public employment. Rather, by its terms it prohibited any further payment of compensationto named individuals or employees. Under these circumstances, viewed against the legislative background, the statutewas held to have imposed penalties without judicial trial. Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy, them it mustbe demonstrated that the statute claimed to be a bill of attainderreaches past conduct and that the penalties it imposesare inescapable. As the U.S. Supreme Court observedwith respect to the U.S. Federal Subversive Activities ControlAct of 1950: Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct which it regulates is describedwith such particularity that, in probability, few organizationswill come within the statutory terms. Legislatures may act tocurb behaviour which they regard as harmful to the public welfare,whether that conduct is found to be engaged in by manypersons or by one. So long as the incidence of legislation issuch that the persons who engage in the regulated conduct, bethey many or few, can escape regulation merely by altering thecourse of their own present activities, there can be no complaintof an attainder. 33 This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof expressly statesthat the prohibition therein applies only to acts committed"After the approval of this Act." Only those who "knowingly,willfully and by overt acts affiliate themselves with,become or remain members of the Communist Party of thePhilippines and/or its successors or of any subversive association"after June 20, 1957, are punished. Those whowere members of the Party or of any other subversive associationat the time of the enactment of the law, weregiven the opportunity of purging themselves of liability byrenouncing in writing and under oath their membershipin the Party. The law expressly provides that such renunciationshall operate to exempt such persons from penalliability. 34 The penalties prescribed by the Act are thereforenot inescapable. III. The Act and the Requirements of Due Process 1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of the Philippinesis an organized conspiracy for the overthrow of theGovernment is inteded not to provide the basis for a legislativefinding of guilt of the me mbers of the Party butrather to justify the proscription spelled out in section 4. Freedom of expression and freedom of association are sofundamental that they are thought by some to occupy a"preferred position" in the hierarchy of constitutional values. 35 Accordingly, any limitation on their exercise mustbe justified by the existence of a substantive evil. This isthe reason why before enacting the statute in question Congressconducted careful investigations and then stated itsfindings in the preamble, thus: ... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in fact an organized conspiracyto overthrow the Government of the Republic of the Philippinesnot only by force and violence but also by deceit, subversionand other illegal means, for the purpose of establishing in thePhilippines a totalitarian regime subject to ali en dominationand control; ... [T]he continued existence and activities of the CommunistParty of the Philippines constitutes a clear, present andgrave danger to the security of the Philippines; ... [I]n the face of the organized, systematice and persistentsubversion, national in scope but international in direction,posed by the Communist Party of the Philippines and its activities,there is urgent need for special legislation to cope withthis continuing menace to the freedom and security of the country. In truth, the constitutionality of the Act would be opento question if, instead of making these findings in enactingthe statute, Congress omitted to do so. In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed to takeproper account of the distinction between legislative fact and adjudicative fact. Professor Paul Freund elucidatesthe crucial distinction, thus: ... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol would raise a question of legislativefact, i.e., whether this standard has a reasonable relationto public health, morals, and the enforcement problem. Alaw forbidding t he sale of intoxicating beverages (assuming itis not so vague as to require supplementation by rule-making)would raise a question
of adjudicative fact, i.e., whether thisor that beverage is intoxicating within the meaning of the statuteand the limits on governmental action imposed by the Constitution. Of course what we mean by fact in each case is i s itselfan ultimate conclusion founded on underlying facts and oncriteria of judgment for weighing them. A conventional formulation is that legislative facts — those those facts which are relevant to the legislative judgment — will will not be canvassed save to determine whether there is a rationalbasis for believing that they exist, while adjudicativefacts — those those which tie the legislative enactment to the litigant — are are to be demonstrated and found according to the ordinarystandards prevailing for judicial trials. 36 The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is that 'if laws are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio." The recital of legislative findings implements this test. With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities Control Actof 1950 (that "Communist-action "Communist-action organizations" are controlledby the foreign government controlling the worldCommunist movement and that they operate primarily to"advance the objectives of such world Communist movement"),the U.S. Supreme Court said: It is not for the courts to reexamine the validity of theselegislative findings and reject them....They are the productof extensive investigation by Committes of Congress over morethan a decade and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We certainly cannot dismiss them as unfoundedirrational unfoundedirrational imaginings. ... And if we accept them, as we mustas a not unentertainable appraisal by Congress of the threatwhich Communist organizations pose not only to existing governmentin the United States, but to the United States as asovereign, independent Nation. ...we must recognize that thepower of Congress to regulate Communist organizations of thisnature is extensive. 39 This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-Subversion Act. That the Government has a right to protect itself againstsubversion is a proposition too plain to require elaboration.Selfpreservation is the "ultimate value" of society. It surpasses and transcendes every other value, "forif a society cannot protect its very structure from armedinternal attack, ...no subordinate value can be protected" 40 As Chief Justice Vinson so aptly said in Dennis vs. United States: 41 Whatever theoretical merit there may be to the argumentthat there is a 'right' to rebellion against dictatorial governmentsis without force where the existing structure of government provides for peaceful and orderly change. We rejectany principle of governmental helplessness in the face of preparationfor revolution, which principle, carried to its logical conclusion,must lead to anarchy. No one could conceive that it isnot within the power of Congress to prohibit acts intended tooverthrow the government by force and violence. 2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof), Congressreaffirmed its respect for the rule r ule that "even throughthe governmental purpose be legitimate and substantial,that purpose cannot be pursued by means that broadly stiflefundamental personal liberties when the end can be more narrowly achieved." 42 The requirement of knowing membership,as membership,as distinguished from nominalmembership, nominalmembership, hasbeen held as a sufficient basis for penalizing membershipin a subversive organization. 43 For, as has been stated: Membership in an organization renders aid and encouragement to the organization; and when membership is acceptedor retained with knowledge that the organization is engaged inan unlawful purpose, the one accepting or retaining membershipwith such knowledge knowledge makes himself a party to the unlawfulenterprise in which it is engaged. 44 3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of "overthrow"of the Government and overthrow may be achieved by peaceful means, misconceives the function of the phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely a legislative le gislative declaration; the definitionsof and the penalties prescribed for the different acts prescribedare stated in section 4 which requires that membershipin the Communist Party of the Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed, the first "whereas" clause makes clear thatthe overthrow contemplated is "overthrow not only by forceand violence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio in section 2 appearsto be due more to an oversight rather than to deli berateomission. Moreover, the word "overthrow' sufficiently connotesthe use of violent and other il legal means. Only in a metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law does not speak in metaphors.In the case of the AntiSubversion Act, the use ofthe word "overthrow" in a metaphorical sense is hardlyconsistent with the clearly delineated objective of the "overthrow,"namely, "establishing in the Philippines a totalitarianregime and place [sic] the Government under thecontrol and domination of an alien power." What thisCourt once said in a prosecution for sedition is appropos: "The language used by the appellant clearly imported anoverthrow of the Government by violence, and it should beinterpreted in the plain and obvious sense in which it wasevidently intended to be understood. The word 'overthrow'could not have been intended as referring to an ordinarychange by the exercise of the elective franchise. The useof the whip [which the accused exhorted his audience to useagainst the Constabulary], an instrument designed toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation which the appellant wouldhave us impute to the language." 45 IV. The Act and the Guaranty of Free Expression As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force, violence orother illegal means. Whatever interest in freedom of speechand freedom of association is infringed by the prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is so indirect and so insubstantial as to beclearly and heavily outweighed by the overriding considerationsof national security and the preservartion of democraticinstitutions in his country. The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership provision ofthe Anti-Subversion Act. The former provides: Whoever organizes or helps or attempts to organize anysociety, group, or assembly of persons who teach, advocate, orencourage the overthrow or destruction of any such governmentby force or violence; or becomes or is a member of, or affiliatedwith, any such society, group or assembly of persons, knowingthe purpose thereof — Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or both, and shall be ineligible for emplymentby the United States or any department or agencythereof, for the five years next following his conviction.... 46 In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47 It was settled in Dennis that advocacy with which we arehere concerned is not constitutionally protected speech, and itwas further established that a combination to promote suchadvocacy, suchadvocacy, albeit under the aegis of what purports to be a politicalparty, is not such association as is protected by the firstAmendment. We can discern no reason why membership, whenit constitutes a purposeful form of complicity in a group engagingin this same forbidden advocacy, should receive anygreater degree of protection from the guarantees of that Amendment. Moreover, as was held in another case, where the problemsof accommodating the exigencies of self-preservationand the values of liberty are as complex and intricate as inthe situation described in the legislative findings stated inthe U.S. Federal Subversive Activities Control Act of 1950,the legislative judgment as to how that threat may best bemet consistently with the safeguards of personal freedomsis not to be set aside merely because the judgment of judgeswould, in the first instance, have chosen other methods. 48 For in truth, legislation, "whether it restrains freedom tohire or freedom to speak, is itself an effort at
compromisebetween the claims of the social order and individual freedom,and when the legislative compromise in either case isbrought to the judicial test the court stands one step removedfrom the conflict and its resolution through law." 49 V. The Act and its Title The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill." 50 What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4 which reads: And provided, finally, That one who conspires with anyother person to overthrow the Government of the Republic ofthe Philippines, or the government of any of its political subdivisionsby force, violence, deceit, subversion or illegal means,for the purpose of placing such Government or political subdivisionunder the control and domination of any lien power, shallbe punished by prision correccional to prision mayor with allthe accessory penalties provided therefor in the same code. It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of the Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the national or any local governmentby illegal means, even if their intent is not to establisha totalitarian regime, burt a democratic regime, evenif their purpose is not to place the nation under an aliencommunist power, but under an alien democratic power likethe United States or England or Malaysia or even an anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia." The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title. Section 1 providesthat "This Act shall be known as the Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates that the subject matter is subversionin general which has for its fundamental purpose the substitutionof a foreign totalitarian regime in place of theexisting theex isting Government and not merely subversion by Communistcon Communistconspiracies.. spiracies.. The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of the Act. 51It i s a valid title if it indicates in broad but clear termsthe nature, scope, and consequences of the proposed lawand its operation. 52 A narrow or technical construction isto be avoided, and the statute will be read fairly and reasonablyin order not to thwart the legislative intent. We holdthat the Anti-Subversion Act fully satisfies these requirements. VI. Conclusion and Guidelines In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize the needfor prudence and circumspection in its enforcement, operatingas it does in the sensitive area of freedom of expressionand belief. Accordingly, we set the following basic guidelines to be observed in any prosecution under the Act.The Government, in addition to proving such circumstancesas may affect liability, must establish the following elementsof the crime of joining the Communist Party of the Philippinesor any other subversive association: (1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that thepurpose of the organization is to overthrow the presentGovernment of the Philippines and to establish in thiscountry a totalitarian regime under the domination of aforeign power; (b) that the accused joined such organization;and (c) that he did so knowingly, willfully and byovert acts; and (2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the objectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of the Government by illegalmeans for the purpose of placing the country under thecontrol of a foreign power; (b) that the accused joined theCPP; and (c) that he did so willfully, knowingly and byovert acts. We refrain from making any pronouncement as to thecrime or remaining a member of the Communist Party ofthe Philippines or of any other subversive association: weleave this matter to future determination. ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases are herebyremanded to the court a quo for trial on the merits. Costs de oficio. Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur. Concepcion, C.J., concurs in the result. Makasiar and Antonio, JJ., took no part.
Separate Opinions FERNANDO, J., dissenting: It is with regard that I find myself unable to join therest of my brethren in the decision reached upholding thevalidity of the AntiSubversion Act. 1 It is to be admittedthat the learned and scholarly opinbion of Justice Castro hasthe impress of conscientious and painstaking scrutiny ofthe constitutional issues raised. What is more, the stressin the concluding portion thereof on basic guidelines thatwill assure in the trial of those prosecuted under suchAct respect for their constitutional rights is to be commended.Nonetheless, my own reading of the decisionscited, interpreting the bill of attainder clause 2 coupled withthe fears, perhaps induced by a too-latitudinarian constructionof the guarantees of freedom of belief and expression 3 as well as freedom of association 4 as to impermissible inroadsto which they may be exposed, compels a differentconclusion. Hence this dissent. 1. There is to be sure no thought on my part that theequally pressing concern of state safety and security shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a justifiable indictment fornegligence had they been remiss in their obligation tosafeguard the nation against its sworn enemies. In a simplerera, where the overthrow of the government wasusually through the rising up in arms, with weapons farless sophisticated than those now in existence, there wasno constitutional issue of the magnitude that now confrontsus. Force has to be met with force. It was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyalty and weakening the senseof allegiance have introduced complexities in coping withsuch problems. There must be then, and I am the firstto recognize it, a greater understanding for the governmentalresponde to situations of that character. It is inthat light that the validity of the Anti-Subversion Act isto be appraised. From ny standpoint, and I am not presumptuousenough to claim that it is the only perspectiveor that is the most realistic, I feel that there was an insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, all that it would mean is that anew legislation, more in comformity to my way of thinkingto what is ordained by the fundamental law, wouldhave to be enacted. No valid fear need be entertained thenthat a setback would be occasioned to legitilate state effortsto stem the tide of subversive activities, in whateverform manifested. 2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning attachedto it by the Constitutional Convention Convention of 1934 and by the people who adopted it. As was explained e xplained by the then Delegate, later Justice, Jose P. Laurel in his address on November19, 1934 as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billof attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which a man was tried, convictedand sentenced to
death without a jury, without ahearing in court, without hearing the witnesses againsthim and without regard to the rules of evidence. His bloodwas attainted or corrupted, rendering him devoid of allheritable quality — of acquiring and disposing property bydescent. (Ex parte Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was includedin a bill of attainder presented to Parliament becauseof his reform activities." 5 Two American SupremeCourt decision were thus in the minds of the framers.They are Cummings v. Missouri 6 and Ex parte Garland. 7 They They speak unequivocally. Legislative acts, no matter whattheir form, that apply either to named individuals or easilyascertainable members of a group in such a way as to inflicton them punishment amounting to a deprivation ofany right, civil or political, without judicial trial are billsof attainder prohibited by the Constitution. 8 Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the loyalty oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors, ministers, and otherprofessionals must disavow that they had ever, "by act orword," manifested a "desire" for the success of the nation'senemies or a sympathy" with the rebels of the AmericanCivil War. If they swore falsely, they were guilty of perjury.If they engaged in their professions without theoath, they were criminally liable. The United States Supreme Court condemned the provision as a bill of attainder,identified as any legislative act inflicting punishment withoutjudicial trial. The deprivation of any right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such a conclusion was unavoidable was explained inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which inflicts punishment without a judicialtrial. If the punishment be less than death, the actis termed a bill of pains and penalties. Within the meaningof the Constitution, bills of attainder include bills ofpains and penalties. In these cases the legislative body, inaddition to its legitimate functions, exercises the powersand office of judge; it assumes, in the language of thetextbooks, judicial magistracy; it pronounces upon theguilt of the party, without any of the forms or safeguardsof trial; it determines the sufficiency of the proofs produced,whether conformable to the rules of evidence orotherwise; and it fixes the degree of punishment in accordancewith its own notions of the enormity of the offense. ... If the clauses of the 2d article of the Constitutionof Missouri, to which we have referred, had in termsdeclared that Mr. Cummings was guilty, or should be heldguilty, of having been in armed hostility to the UnitedStates, or of having entered that state to avoid beingenrolled or drafted into the military service of the UnitedStates, and, therefore, should be deprived of the right topreach as a priest of the Catholic church, or to teach inany institution of learning, there could be no question thatthe clauses would constitute a bill of attainder within themeaning of the Federal Constitution. If these clauses, insteadof mentioning his name, had declared that all priestsand clergymen within the state of Missouri were guiltyof these acts, or should be held guilty of them, and hencebe subjected to the like deprivation, the clause would beequally open to objection. And further, it these clauseshad declared that all such priests and clergymen shouldbe so held guilty, and be thus deprived, provided they didnot, by a day designated, do certain specified acts, theywould be no less within the inhibition of the Federal Constitution.In all these cases there would be the legislativeenactment creating the deprivation, without any of theordinary forms and guards provided for the security ofthe citizen in the administration of justice by the establishedtribunales." establishedtribunales." 10 On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11 was also decided. Thatwas a motion for leave to practrice as an attorney beforethe American Supreme Court. Petitioner Garland wasadmitted to such bar at the December term of 1860. Underthe previous rules of such Court, all that was necessarywas that the applicant have three years practice in the statecourts to which he belonged. In March 1865, the rule waschanged by the addition of a clause requiring that an oathbe taken under the Congressional acts of 1862 and 1865to the effect that such candidate for admission to the barhad never voluntarily borne arms against the UnitedStates. Petitioner Garland could not in conscience subscribeto such an oath, but he was able to show a presidentialpardon extended on July 15, 1865. With such actof clemency, he moved that he be allowed to continue inpractice contending that the test oath requirement wasunconstitutional as a bill of attainder and that at any rate,he was pardoned. The same ruling was announced by theCourt again through through Justice Field. Thus: "In the exclusionwhich excl usionwhich the statute adjudges, it imposes a punishmentfor some of the acts specified which were not punishableat the time they were committedl; and for other of the actsit adds a new punishment to that before prescribed, andit is thus brought within the further inhibition of the Consitutionagainst the passage of an ex post facto law. Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to consider at length the meaning of abill of attainder and of an ex post facto law in the clauseof the Constitution forbidding their passage by the states,and it is unnecessary to repeat here what we there said.A like prohibition is contained in the Constitution againstenactments of this kind by Congress; and the argumentpresented in that case against certain clauses of the Constitutionof Missouri is equally applicable to the act ofCongress under consideration in this case." 12 There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13 decided in 1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had been for several yearsworking for the government. The government agencies,which had lawfully employed them, were fully satisfiedwith the quality of their work and wished to keep thememployed on their jobs. Over their protest, Congress providedin Section 304 of the Urgent Deficiency AppropriationAct of 1943, by way of an amendment attached to theHouse Bill, that after November 15, 1943, no salary orcompensation should be paid respondent out of any moneythen or thereafter appropriated appropriated except for services as jurorsor members of the armed forces, unless they wereprior to November 15, 1943, again appointed to jobs bythe President with the advide and consent of the Senate.Notwithstanding such Congressional enactment, and thefailure of the President to reappoint the respondents, theagencies, kept all the respondents at work on their jobs forvarying periods after November 15, 1943, but their compensationwas discontinued after that date. Respondentsbrought this action in the Court of Claims for the salariesto which they felt entitled. The Ameican Supreme Courtstated that its inquiry was thus confined to whether theaction in the light of proper construction of the Act presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainder insofar as the respondents wereconcerned. After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category of Congressional actionswhich the Constitution barred by providing that 'No Billof Attainder or ex post Law shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a legislative act which inflicts punishmentwithout a judicial trial. If the punishment be lessthan death, the act is termed a bill of pains and penalties.Within the meaning of the Constitution, bills of attainderinclude attainderinclude bills of pains and penalties.' ... On the sameday the Cummings case was decided, the Court, in Exparte Garland, also held invalid on the same grounds anAct of Congress which required attorneys practicing beforethis Court to take a similar oath. Neither of thesecases has ever been overruled. They stand for the propositionthat legislative acts, no matter what their form,that apply either to named individuals or to easily ascertainablemembers of a group in such a way as to inflictpunishment on them without a judicial trial are billsof attainder prohibited by the Constitution. Adherenceto this principle requires invalidation of Section 304. Wedo adhere to it. " 14 United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the Labor-ManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the Communist Party to serve as anofficer ir, except in clerical or custodial positions, anemployee of a labor union. Respondent Brown, a longshoremanon the San Francisco docks, and an open andavowed Communist, Communist, for more than a quarter of a centurywas elected to the Executive Board of Local 10 of theInternational Longshoremen's and Warehousemen's Unionfor consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a one-countindictment returned in a district court of California withservicing as a member of an executive board of a labororganization while a member of the Communist Party, inwillful violation of the above provision. The
question ofits validity under the bill of attainder clause was thusproperly raised for adjudication. While convicted in thelower court, the Court of Appeals for the Ninth Circuitreversed. It was sustained by the American SupremeCourt. As noted in the opinion by Chief Justice Warren,"the wide variation in form, purpose and effect of ante-Constitutionbills of attainder indicates that the properscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, must ultimately be sought by attemptingto discern the reasons for its inclusion in theConstitution, and the evils it was desinged to eliminate.The best available evidence, the writings of the architectsof our constitutional system, indicates that the Bill ofAttainder Clause was inteded not as a narrow, technical(and therefore soon to be outmoded) prohibition, but ratheras an implementation of the separation of powers, ageneral safeguard against legislative exercise of the judicialfunction, or more simply — trial by legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief Justice Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under theCommerce Clause to enact legislation designed to keepfrom positions affecting interstate commerce persons whomay use such positions to bring about political strikes. In Sec. 504, however, Congress has exceeded the authoritygranted it by the Constitution. The statute does not setforth a generally applicable rule decreeing that any personwho commits certain acts or possesses certain characteristics (acts and characteristics whhich, in Congress'view, make them likely to initiate political strikes) shallnot hold union office, and leave to courts and juries thejob of deciding what persons have committed the specifiedacts or possessed the specified characteristics. Instead,it designates in no uncertain terms the personswho possess the fearec characteristics and therefore cannothold union office without incurring criminal liability — members of the Communist Party." 17 Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the Subversive ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States to register was sustained, the opinionof Justice Frankfurter for the Court, speaking for a five-manmajority, did indicate adherence to the Cummingsprinciple. Had the American Communist Party been outlawed,the outcome certainly would have been different.Thus: "The Act is not a bill of attainder. It attaches notto specified organizations but to described activities inwhich an organization may or may not engage. The singlingout of an individual for legislatively prescribed punishmentconstitutes an attainder whether the individualis called by name or described in terms of conduct which,because it is past conduct, operates only as a designationof particular persons. ... The Subversive Activities ControlAct is not of that king. It requires the registrationonly of organizations which, after the date of the Act,are found to be under the direction, domination, or controlof certain foreign powers and to operate primarily t oadvance certain objectives. This finding must be madeafter full administrative hearing, subject to judicial reviewwhich opens the record for the reviewing court'sdetermination whether the administrative findings as tofact are supported by the preponderance of the evidence.Present activity constitutes an operative element to whichthe statute attaches legal consequences, not merely a pointof reference for the ascertainment of particularly personsineluctably designated by the legislature." 19 The teaching of the above cases, which I find highlypersuasive considering what appeared to be in the mindsof the framers of the 1934 Constitutional Conventionyields for me the conclusion that the Anti-SubversionAct falls within the ban of the bill of attainder clause. Itshould be noted that three subsequent cases upholding theCummings and Garland doctrine were likewise cited in theopinion of the Court. The interpretation accorded to themby my brethren is, of c ourse, different but I am unable togo along with them especially in the light of the categoricallanguage appearing in Lovett. This is not to lose sightof the qualification that for them could deprive such aholding of its explicit character as shown by this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of attainder it would be totally unnecessaryto charge communists in court, as the law alone,without more, would suffice to secure their conviction andpunishment. But the fact is that their guilt still has to bejudicially estblished. The Government has yet to proveat the trial that the accused joined the Party knowingly,willfully and by overt acts, and that they joined the Partyknowing its subversive character and with specific intentto further its objective, i.e., to overthrow the existing Governmentby force, deceit, and other illegal means and placeit under the control and domination of a foreign power. 20While not implausible, I find difficulty in yielding acceptance.In Cummings, there was a criminal prosecution ofthe Catholic priest who refused to take the loyalty oath.Again in Brown, there was an indictment of the l aborleader who, judging by his membership in the CommunistParty, did transgress the statutory provision subsequentlyfound offensive to the bill attainder clause. If the constructionI would place on theoff-repeated pronouncementof the American Supreme Court is correct, then the merefact that a criminal case would have to be instituted wouldnot save the statute. It does seem clear to me that fromthe ve ry title of the Anti-Subversion Act, "to outlaw the Communist Party of the Philippines and similar associations,"not to mention other specific provisions, the taintof invalidity is quite marked. Hence, my inability to concurin the judgment reached as the statute not suffering fromany fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder. 3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the intellectual libertysafeguarded by the Constitution in terms of the free speechand free assocition guarantees. 21 It is to be admitted thatat the time of the enactment of Republic Act No. 1700,the threat that Communism, the Russian brand then, didpose was a painful reality for Congressional leaders andthe then President. Its shadow fell squarely across thelives of all. Subversion then could neither be denied notdisparaged. There was, in the expert opinion of those conversantwith such mattes, a danger to out national existenceof no mean character. Nonetheless, the remedies toward off such menace must not be repugnant to our Constitution.We are legally precluded from acting in anyother way. The apprehension justly felt i s no warrant forthrowing to the discard fundamental guarantees. Vigilantwe had to be, but not at the expense of constitutional ideals. One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ, evenobject; one can express dissatisfaction with things as theyare. There are timew when one not only can but must.Such dissent can take the form of the most critical andthe most disparaging remarks. They may give offense tothose in authority, to those who wield powe and influence.Nevertheless, they are entitled to constitutional protection.Insofar as the content of such dissent is concerned, thelimits are hardly discernible. It cannot be confined totrivial matters or to such as are devoid of too much significance.It can reac h the heart of things. Such dissentmay, for those not so adventurous in the realm of ideas,possess a subversive tinge. Even those who oppose a democraticform of government cannot be silenced. This is trueespecially in centers of learning where scholars competentin their line may, as a result of their studies, assert thata future is bleak for the system of government now favoredby Western democracies. There may be doubts entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of advocary of such adrastic change. Any citizen may do so without fear thatthereby he incurs the risk of a penal sanction. That ismerely to affirm the truth of this ringing declaration fromJefferson: "If there be any among us who would wish todissolve this union or to change its republican form, letthem stand undisturbed as monuments of the safety withwhich error of opinion may be tolerated where reason isleft free to combat it." 22 As was so well put by the philosopher,Sidney Hook: "Without holding the right to theexpression of heresy at any time and place to be absolute — for even the right to non-heretical speech cannot beabsolute — it still seems wise to tolerate the expression evenof Communist, fascist and other heresies, lest in outlawingthem we include other kings of heresies, and deprive ourselvesof the opportunity to acquite possibly sounder ideasthan our own." 23 The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of seditionor rebellion. The sta te has been reached, to follow theformulation of Cardozo, where thought merges into action.Thus is loyalty shown to the freedom of speech or pressordained by the Constitution. It does not bar the expressionof views affecting the very life of the state, even ifopposed to its fundamental presuppositions. It allows, ifit does not require as a matter of fact, that unorthodoxideas be freely ventilated and fully heard. Dissent is notdisloyalty.
Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the governmental purposesbe legitimate and substantial, they cannot be pursuedby means that br oadly stifle fundamental personalliberties when the end can be more narrowly achieved.For precision of regulation is the touchstone in an areaso closely related to our most precious freedoms." 24 This is so for "a governmental purpose to control or prevent activities constitutionally subject to state regulation may notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of protected freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute be avoided. If such be the case, then theline dividing the valid from the constitutionally infirm hasbeen crossed. That for me is the conclusion to be drawnfrom the wording of the Anti-Subversion Act. There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist Party casediscussed above. What is to be kept in view is that a legislativemeasure certainly less drastic in its treatment ofthe admittedly serious Communist problem was found inthe opinion of this noted jurist offensive to the FirstAmendment of the American Constitution safeguardingfree speech. Thus: "If there is one thing certain aboutthe First Amendment it is that this Amendment was designedto guarantee the freest interchange of ideas aboutall public matters and that, of course, means the interchangeof all ideas, however such ideas may be viewed inother countries and whatever change in the existing structureof government it may be hoped that these i deas willbring about. Now, when this country is trying to spreadthe high ideals of democracy all over the world — ideals that are revolutionary in many countries — seems to be aparticularly inappropriate time to stifle First Amendmentfreedoms in this country. The same arguments that areused to justify the outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of democracyin other countries." 26 Further he stated: "I believe with theFramers of the First Amendment that the internal securityof a nation like ours does not and cannot be made todepend upon the use of force by Government to make allthe beliefs and opinions of the people fit into a commonmold on any single subject. Such enforced conformity ofthought would tend only to deprive our people of the boldspirit of adventure and progress which has brought thisNation to its present greatness. The creation of publicopinion by groups, organizations, societies, clubs, and partieshas been and is a necessary part of our democraticsociety. Such groups, like the Sons of Liberty and theAmerican Corresponding Societies, played a large part increating sentiment in this country that led the people ofthe Colonies to want a nation of their own. The Father ofthe Constitution — James Madison — said, in speakingof the Sedition Act aimed at crushing the Jefferson Party,that had that law been in effect during the period beforethe Revolution, the United States might well have continuedto be 'miserable colonies, groaning under a foreign yoke.'In my judgment, this country's internal security can betterbe served by depending upon the affection of the peoplethan by attempting to instill them with fear and dreadof the power of Government. The Communist Party hasnever been more than a small group in this country. Andits numbers had been dwindling even before the Governmentbegan its campaign to destroy the Party by force oflaw. This was because a vast majority of the Americanpeople were against the Party's policies and overwhelminglyrejected its candidates year after year. That is the trueAmerican way of securing this Nation against dangerousideas. Of course that is not the way to protect the Nationagainst actions of violence and treason. The Foundersdrew a distinction in our Constitution which we would bewise to follow. They gave the Government the fullest powerto prosecute overt actions in violation of valid lawsbut withheld any power to punish people for nothing morethan advocacy of their views." 27 With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I cannot sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfully meeting the test of validity onfree speech and freedom of association grounds. 4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of the challengedstatute which for me is susceptible of an interpretationthat it does represent a defeatist attitude on thepart of those of us, who are devotees at the shrine of aliberal-democratic state. That certainly could not havebeen the thought of its framers; nonetheless, such an assumptionis not devoid of plausibility for why resort tothis extreme measure susceptible as it is to what apparentlyare not unfounded attacks on constitutional grounds?Is this not to ignore what previously was accepted as anobvious truth, namely that the light of liberalism sendsits shafts in many directions? It can il luminate, and itcan win the hearts and minds of men. It if difficult forme to accept the view then that a resort to outlawry isindispensable, that suppression is the only answer to whatis an admitted evil. There could have been a greater exposureof the undesirability of the communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its inculcation of disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in a realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of course,is the propaganda of the deed. What the communists promise,this government can fulfill. It is up to it then to takeremedial measures to alleviate the condition of our countrymenwhose lives are in a condition of destitution andmisery. It may not be able to change matters radically.At least, it should take earnest steps in that direction.What is important for those at the bottom of the economicpyramid is that they are not denied the opportunity for abetter life. If they, or at least their children, cannot evenlook forward to that, then a constitutional regime is nothingbut a mockery and a tragic illusion. Such a response,I am optimistic enough to believe, has the merit of thinning,if not completely eliminating, the embattled ranksand outposts of ignorance, fanaticism and error. That forme would be more in accordance with the basic propositionof our polity. This is not therefore to preach a doctrine of object surrender to the forces apparently bent on the adoption of a way of life so totally opposed to the deeply felt traditions of our people. This is, for me at least, an affirmation of the vitality of the democratic creed, with an expression of regret that it could not have been more impressively set forth in language worthy of the subject. It is in the light of the views above expressed that I find myself unable to yield concurrence to the ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act. Separate Opinions FERNANDO, J., dissenting: It is with regard that I find myself unable to join therest of my brethren in the decision reached upholding thevalidity of the AntiSubversion Act. 1 It is to be admittedthat the learned and scholarly opinbion of Justice Castro hasthe impress of conscientious and painstaking scrutiny ofthe constitutional issues raised. What is more, the stressin the concluding portion thereof on basic guidelines thatwill assure in the trial of those prosecuted under suchAct respect for their constitutional rights is to be commended.Nonetheless, my own reading of the decisionscited, interpreting the bill of attainder clause 2 coupled withthe fears, perhaps induced by a too-latitudinarian constructionof the guarantees of freedom of belief and expression 3 as well as freedom of association 4 as to impermissible inroadsto which they may be exposed, compels a differentconclusion. Hence this dissent. 1. There is to be sure no thought on my part that theequally pressing concern of state safety and security shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a justifiable indictment fornegligence had they been remiss in their obligation tosafeguard the nation against its sworn enemies. In a simplerera, where the overthrow of the government wasusually through the rising up in arms, with weapons farless sophisticated than those now in existence, there wasno constitutional issue of the magnitude that now confrontsus. Force has to be met with force. It was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyalty and weakening the senseof allegiance have introduced
complexities in coping withsuch problems. There must be then, and I am the firstto recognize it, a greater understanding for the governmentalresponde to situations of that character. It is inthat light that the validity of the Anti-Subversion Act isto be appraised. From ny standpoint, and I am not presumptuousenough to claim that it is the only perspectiveor that is the most realistic, I feel that there was an insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, all that it would mean is that anew legislation, more in comformity to my way of thinkingto what is ordained by the fundamental law, wouldhave to be enacted. No valid fear need be entertained thenthat a setback would be occasioned to legitilate state effortsto stem the tide of subversive activities, in whateverform manifested. 2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning attachedto it by the Constitutional Convention of 1934 and by the people who adopted it. As was explained by the then Delegate, later Justice, Jose P. Laurel in his address on November19, 1934 as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billof attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which a man was tried, convictedand sentenced to death without a jury, without ahearing in court, without hearing the witnesses againsthim and without regard to the rules of evidence. His bloodwas attainted or corrupted, rendering him devoid of allheritable quality — of acquiring and disposing property bydescent. (Ex parte Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was includedin a bill of attainder presented to Parliament becauseof his reform activities." 5 Two American SupremeCourt decision were thus in the minds of the framers.They are Cummings v. Missouri 6 and Ex parte Garland. 7 They speak unequivocally. Legislative acts, no matter whattheir form, that apply either to named individuals or easilyascertainable members of a group in such a way as to inflicton them punishment amounting to a deprivation ofany right, civil or political, without judicial trial are billsof attainder prohibited by the Constitution. 8 Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the loyalty oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors, ministers, and otherprofessionals must disavow that they had ever, "by act orword," manifested a "desire" for the success of the nation'senemies or a sympathy" with the rebels of the AmericanCivil War. If they swore falsely, they were guilty of perjury.If they engaged in their professions without theoath, they were criminally liable. The United States Supreme Court condemned the provision as a bill of attainder,identified as any legislative act inflicting punishment withoutjudicial trial. The deprivation of any right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such a conclusion was unavoidable was explained inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which inflicts punishment without a judicialtrial. If the punishment be less than death, the actis termed a bill of pains and penalties. Within the meaningof the Constitution, bills of attainder include bills ofpains and penalties. In these cases the legislative body, inaddition to its legitimate functions, exercises the powersand office of judge; it assumes, in the language of thetextbooks, judicial magistracy; it pronounces upon theguilt of the party, without any of the forms or safeguardsof trial; it determines the sufficiency of the proofs produced,whether conformable to the rules of evidence orotherwise; and it fixes the degree of punishment in accordancewith its own notions of the enormity of the offense. ... If the clauses of the 2d article of the Constitutionof Missouri, to which we have referred, had in termsdeclared that Mr. Cummings was guilty, or should be heldguilty, of having been in armed hostility to the UnitedStates, or of having entered that state to avoid beingenrolled or drafted into the military service of the UnitedStates, and, therefore, should be deprived of the right topreach as a priest of the Catholic church, or to teach inany institution of learning, there could be no question thatthe clauses would constitute a bill of attainder within themeaning of the Federal Constitution. If these clauses, insteadof mentioning his name, had declared that all priestsand clergymen within the state of Missouri were guiltyof these acts, or should be held guilty of them, and hencebe subjected to the like deprivation, the clause would beequally open to objection. And further, it these clauseshad declared that all such priests and clergymen shouldbe so held guilty, and be thus deprived, provided they didnot, by a day designated, do certain specified acts, theywould be no less within the inhibition of the Federal Constitution.In all these cases there would be the legislativeenactment creating the deprivation, without any of theordinary forms and guards provided for the security ofthe citizen in the administration of justice by the establishedtribunales." 10 On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11 was also decided. Thatwas a motion for leave to practrice as an attorney beforethe American Supreme Court. Petitioner Garland wasadmitted to such bar at the December term of 1860. Underthe previous rules of such Court, all that was necessarywas that the applicant have three years practice in the statecourts to which he belonged. In March 1865, the rule waschanged by the addition of a clause requiring that an oathbe taken under the Congressional acts of 1862 and 1865to the effect that such candidate for admission to the barhad never voluntarily borne arms against the UnitedStates. Petitioner Garland could not in conscience subscribeto such an oath, but he was able to show a presidentialpardon extended on July 15, 1865. With such actof clemency, he moved that he be allowed to continue inpractice contending that the test oath requirement wasunconstitutional as a bill of attainder and that at any rate,he was pardoned. The same ruling was announced by theCourt again through Justice Field. Thus: "In the exclusionwhich the statute adjudges, it imposes a punishmentfor some of the acts specified which were not punishableat the time they were committedl; and for other of the actsit adds a new punishment to that before prescribed, andit is thus brought within the further inhibition of the Consitutionagainst the passage of an ex post facto law. Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to consider at length the meaning of abill of attainder and of an ex post facto law in the clauseof the Constitution forbidding their passage by the states,and it is unnecessary to repeat here what we there said.A like prohibition is contained in the Constitution againstenactments of this kind by Congress; and the argumentpresented in that case against certain clauses of the Constitutionof Missouri is equally applicable to the act ofCongress under consideration in this case." 12 There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13 decided in 1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had been for several yearsworking for the government. The government agencies,which had lawfully employed them, were fully satisfiedwith the quality of their work and wished to keep thememployed on their jobs. Over their protest, Congress providedin Section 304 of the Urgent Deficiency AppropriationAct of 1943, by way of an amendment attached to theHouse Bill, that after November 15, 1943, no salary orcompensation should be paid respondent out of any moneythen or thereafter appropriated except for services as jurorsor members of the armed forces, unless they wereprior to November 15, 1943, again appointed to jobs bythe President with the advide and consent of the Senate.Notwithstanding such Congressional enactment, and thefailure of the President to reappoint the respondents, theagencies, kept all the respondents at work on their jobs forvarying periods after November 15, 1943, but their compensationwas discontinued after that date. Respondentsbrought this action in the Court of Claims for the salariesto which they felt entitled. The Ameican Supreme Courtstated that its inquiry was thus confined to whether theaction in the light of proper construction of the Act presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainder insofar as the respondents wereconcerned. After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category of Congressional actionswhich the Constitution barred by providing that 'No Billof Attainder or ex post Law shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a legislative act which inflicts punishmentwithout a judicial trial. If the punishment be lessthan death, the act is
termed a bill of pains and penalties.Within the meaning of the Constitution, bills of attainderinclude bills of pains and penalties.' ... On the sameday the Cummings case was decided, the Court, in Exparte Garland, also held invalid on the same grounds anAct of Congress which required attorneys practicing beforethis Court to take a similar oath. Neither of thesecases has ever been overruled. They stand for the propositionthat legislative acts, no matter what their form,that apply either to named individuals or to easily ascertainablemembers of a group in such a way as to inflictpunishment on them without a judicial trial are billsof attainder prohibited by the Constitution. Adherenceto this principle requires invalidation of Section 304. Wedo adhere to it. " 14 United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the Labor-ManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the Communist Party to serve as anofficer ir, except in clerical or custodial positions, anemployee of a labor union. Respondent Brown, a longshoremanon the San Francisco docks, and an open andavowed Communist, for more than a quarter of a centurywas elected to the Executive Board of Local 10 of theInternational Longshoremen's and Warehousemen's Unionfor consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a one-countindictment returned in a district court of California withservicing as a member of an executive board of a labororganization while a member of the Communist Party, inwillful violation of the above provision. The question ofits validity under the bill of attainder clause was thusproperly raised for adjudication. While convicted in thelower court, the Court of Appeals for the Ninth Circuitreversed. It was sustained by the American SupremeCourt. As noted in the opinion by Chief Justice Warren,"the wide variation in form, purpose and effect of ante-Constitutionbills of attainder indicates that the properscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, must ultimately be sought by attemptingto discern the reasons for its inclusion in theConstitution, and the evils it was desinged to eliminate.The best available evidence, the writings of the architectsof our constitutional system, indicates that the Bill ofAttainder Clause was inteded not as a narrow, technical(and therefore soon to be outmoded) prohibition, but ratheras an implementation of the separation of powers, ageneral safeguard against legislative exercise of the judicialfunction, or more simply — trial by legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief Justice Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under theCommerce Clause to enact legislation designed to keepfrom positions affecting interstate commerce persons whomay use such positions to bring about political strikes. In Sec. 504, however, Congress has exceeded the authoritygranted it by the Constitution. The statute does not setforth a generally applicable rule decreeing that any personwho commits certain acts or possesses certain characteristics (acts and characteristics whhich, in Congress'view, make them likely to initiate political strikes) shallnot hold union office, and leave to courts and juries thejob of deciding what persons have committed the specifiedacts or possessed the specified characteristics. Instead,it designates in no uncertain terms the personswho possess the fearec characteristics and therefore cannothold union office without incurring criminal liability — members of the Communist Party." 17 Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the Subversive ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States to register was sustained, the opinionof Justice Frankfurter for the Court, speaking for a five-manmajority, did indicate adherence to the Cummingsprinciple. Had the American Communist Party been outlawed,the outcome certainly would have been different.Thus: "The Act is not a bill of attainder. It attaches notto specified organizations but to described activities inwhich an organization may or may not engage. The singlingout of an individual for legislatively prescribed punishmentconstitutes an attainder whether the individualis called by name or described in terms of conduct which,because it is past conduct, operates only as a designationof particular persons. ... The Subversive Activities ControlAct is not of that king. It requires the registrationonly of organizations which, after the date of the Act,are found to be under the direction, domination, or controlof certain foreign powers and to operate primarily toadvance cert ain objectives. This finding must be madeafter full administrative hearing, subject to judicial reviewwhich opens the record for the reviewing court'sdetermination whether the administrative findings as tofact are supported by the preponderance of the evid ence.Present activity constitutes an operative element to whichthe statute attaches legal consequences, not merely a pointof reference for the ascertainment of particularly personsineluctably designated by the legislature." 19 The teaching of the above cases, which I find highlypersuasive considering what appeared to be in the mindsof the framers of the 1934 Constitutional Conventionyields for me the conclusion that the Anti-SubversionAct falls within the ban of the bill of attainder clause. Itshould be noted that three subsequent cases upholding theCummings and Garland doctrine were likewise cited in theopinion of the Court. The interpretation accorded to themby my brethren is, of c ourse, different but I am unable togo along with them especially in the light of the categoricallanguage appearing in Lovett. This is not to lose sightof the qualification that for them could deprive such aholding of its explicit character as shown by this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of attainder it would be totally unnecessaryto charge communists in court, as the law alone,without more, would suffice to secure their conviction andpunishment. But the fact is that their guilt still has to bejudicially estblished. The Government has yet to proveat the trial that the accused joined the Party knowingly,willfully and by overt acts, and that they joined the Partyknowing its subversive character and with specific intentto further its objective, i.e., to overthrow the existing Governmentby force, deceit, and other illegal means and placeit under the control and domination of a foreign power. 20While not implausible, I find difficulty in yielding acceptance.In Cummings, there was a criminal prosecution ofthe Catholic priest who refused to take the loyalty oath.Again in Brown, there was an indictment of the laborleader who, judging by his membership in the CommunistParty, did transgress the statutory provision subsequentlyfound offensive to the bill attainder clause. If the constructionI would place on theoff-repeated pronouncementof the American Supreme Court is correct, then the merefact that a criminal case would have to be instituted wouldnot save the statute. It does seem clear to me that fromthe ve ry title of the Anti-Subversion Act, "to outlaw the Communist Party of the Philippines and similar associations,"not to mention other specific provisions, the taintof invalidity is quite marked. Hence, my inability to concurin the judgment reached as the statute not suffering fromany fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder. 3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the intellectual libertysafeguarded by the Constitution in terms of the free speechand free assocition guarantees. 21 It is to be admitted thatat the time of the enactment of Republic Act No. 1700,the threat that Communism, the Russian brand then, didpose was a painful reality for Congressional leaders andthe then President. Its shadow fell squarely across thelives of all. Subversion then could neither be denied notdisparaged. There was, in the expert opinion of those conversantwith such mattes, a danger to out national existenceof no mean character. Nonetheless, the remedies toward off such menace must not be repugnant to our Constitution.We are legally precluded from acting in anyother way. The apprehension justly felt i s no warrant forthrowing to the discard fundamental guarantees. Vigilantwe had to be, but not at the expense of constitutional ideals. One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ, evenobject; one can express dissatisfaction with things as theyare. There are timew when one not only can but must.Such dissent can take the form of the most critical andthe most disparaging remarks. They may give offense tothose in authority, to those who wield powe and influence.Nevertheless, they are entitled to constitutional protection.Insofar as the content of such dissent is concerned, thelimits are hardly discernible. It cannot be confined totrivial matters or to such as are devoid of too much significance.It can reac h the heart of things. Such dissentmay, for those not so adventurous in the realm of ideas,possess a subversive tinge. Even those who oppose a democraticform of government cannot be silenced. This is trueespecially in centers of learning where scholars competentin their line may, as a result of their studies, assert thata future is bleak for the system of government now favoredby
Western democracies. There may be doubts entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of advocary of such adrastic change. Any citizen may do so without fear thatthereby he incurs the risk of a penal sanction. That ismerely to affirm the truth of this ringing declaration fromJefferson: "If there be any among us who would wish todissolve this union or to change its republican form, letthem stand undisturbed as monuments of the safety withwhich error of opinion may be tolerated where reason isleft free to combat it." 22 As was so well put by the philosopher,Sidney Hook: "Without holding the right to theexpression of heresy at any time and place to be absolute — for even the right to non-heretical speech cannot beabsolute — it still seems wise to tolerate the expression evenof Communist, fascist and other heresies, lest in outlawingthem we include other kings of heresies, and deprive ourselvesof the opportunity to acquite possibly sounder ideasthan our own." 23 The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of seditionor rebellion. The sta te has been reached, to follow theformulation of Cardozo, where thought merges into action.Thus is loyalty shown to the freedom of speech or pressordained by the Constitution. It does not bar the expressionof views affecting the very life of the state, even ifopposed to its fundamental presuppositions. It allows, ifit does not require as a matter of fact, that unorthodoxideas be freely ventilated and fully heard. Dissent is notdisloyalty. Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the governmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadly stifle fundamental personalliberties when the end can be more narrowly achieved.For precision of regulation is the touchstone in an areaso closely related to our most precious freedoms." 24 This is so for "a governmental purpose to control or prevent activities constitutionally subject to state regulation may notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of protected freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute be avoided. If such be the case, then theline dividing the valid from the constitutionally infirm hasbeen crossed. That for me is the conclusion to be drawnfrom the wording of the Anti-Subversion Act. There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist Party casediscussed above. What is to be kept in view is that a legislativemeasure certainly less drastic in its treatment ofthe admittedly serious Communist problem was found inthe opinion of this noted jurist offensive to the FirstAmendment of the American Constitution safeguardingfree speech. Thus: "If there is one thing certain aboutthe First Amendment it is that this Amendment was designedto guarantee the freest interchange of ideas aboutall public matters and that, of course, means the interchangeof all ideas, however such ideas may be viewed inother countries and whatever change in the existing structureof government it may be hoped that these i deas willbring about. Now, when this country is trying to spreadthe high ideals of democracy all over the world — ideals that are revolutionary in many countries — seems to be aparticularly inappropriate time to stifle First Amendmentfreedoms in this country. The same arguments that areused to justify the outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of democracyin other countries." 26 Further he stated: "I believe with theFramers of the First Amendment that the internal securityof a nation like ours does not and cannot be made todepend upon the use of force by Government to make allthe beliefs and opinions of the people fit into a commonmold on any single subject. Such enforced conformity ofthought would tend only to deprive our people of the boldspirit of adventure and progress which has brought thisNation to its present greatness. The creation of publicopinion by groups, organizations, societies, clubs, and partieshas been and is a necessary part of our democraticsociety. Such groups, like the Sons of Liberty and theAmerican Corresponding Societies, played a large part increating sentiment in this country that led the people ofthe Colonies to want a nation of their own. The Father ofthe Constitution — James Madison — said, in speakingof the Sedition Act aimed at crushing the Jefferson Party,that had that law been in effect during the period beforethe Revolution, the United States might well have continuedto be 'miserable colonies, groaning under a foreign yoke.'In my judgment, this country's internal security can betterbe served by depending upon the affection of the peoplethan by attempting to instill them with fear and dreadof the power of Government. The Communist Party hasnever been more than a small group in this country. Andits numbers had been dwindling even before the Governmentbegan its campaign to destroy the Party by force oflaw. This was because a vast majority of the Americanpeople were against the Party's policies and overwhelminglyrejected its candidates year after year. That is the trueAmerican way of securing this Nation against dangerousideas. Of course that is not the way to protect the Nationagainst actions of violence and treason. The Foundersdrew a distinction in our Constitution which we would bewise to follow. They gave the Government the fullest powerto prosecute overt actions in violation of valid lawsbut withheld any power to punish people for nothing morethan advocacy of their views." 27 With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I cannot sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfully meeting the test of validity onfree speech and freedom of association grounds. 4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of the challengedstatute which for me is susceptible of an interpretationthat it does represent a defeatist attitude on thepart of those of us, who are devotees at the shrine of aliberal-democratic state. That certainly could not havebeen the thought of its framers; nonetheless, such an assumptionis not devoid of plausibility for why resort tothis extreme measure susceptible as it is to what apparentlyare not unfounded attacks on constitutional grounds?Is this not to ignore what previously was accepted as anobvious truth, namely that the light of liberalism sendsits shafts in many directions? It can illuminate, and itcan win the hearts and minds of men. It if difficult forme to accept the view then that a resort to outlawry isindispensable, that suppression is the only answer to whatis an admitted evil. There could have been a greater exposureof the undesirability of the communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its inculcation of disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in a realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of course,is the propaganda of the deed. What the communists promise,this government can fulfill. It is up to it then to takeremedial measures to alleviate the condition of our countrymenwhose lives are in a condition of destitution andmisery. It may not be able to change matters radically.At least, it should take earnest steps in that direction.What is important for those at the bottom of the economicpyramid is that they are not denied the opportunity for abetter life. If they, or at least their children, cannot evenlook forward to that, then a constitutional regime is nothingbut a mockery and a tragic illusion. Such a response,I am optimistic enough to believe, has the merit of thinning,if not completely eliminating, the embattled ranksand outposts of ignorance, fanaticism and error. That forme would be more in accordance with the basic propositionof our polity. This is not therefore to preach a doctrine of object surrender to the forces apparently bent on the adoption of a way of life so totally opposed to the deeply felt traditions of our people. This is, for me at least, an affirmation of the vitality of the democratic creed, with an expression of regret that it could not have been more impressively set forth in language worthy of the subject. It is in the light of the views above expressed that I find myself unable to yield concurrence to the ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act. G.R. No. L-25246 September 12, 1974 BENJAMIN VICTORIANO, plaintiff-appellee, vs. ELIZALDE ROPE WORKERS' UNION and ELIZALDE ROPE FACTORY, INC., defendants, ELIZALDE ROPE WORKERS' UNION, defendantappellant.
Salonga, Ordonez, Yap, Sicat & Associates for plaintiff-appellee.
Cipriano Cid & Associates for defendant-appellant. ZALDIVAR, J.:p Appeal to this Court on purely questions of law from the decision of the Court of First Instance of Manila in its Civil Case No. 58894. The undisputed facts that spawned the instant case follow: Benjamin Victoriano (hereinafter referred to as Appellee), a member of the religious sect known as the "Iglesia ni Cristo", had been in the employ of the Elizalde Rope Factory, Inc. (hereinafter referred to as Company) since 1958. As such employee, he was a member of the Elizalde Rope Workers' Union (hereinafter referred to as Union) which had with the Company a collective bargaining agreement containing a closed shop provision which reads as follows: Membership in the Union shall be required as a condition of employment for all permanent employees workers covered by this Agreement. The collective bargaining agreement expired on March 3, 1964 but was renewed the following day, March 4, 1964. Under Section 4(a), paragraph 4, of Republic Act No. 875, prior to its amendment by Republic Act No. 3350, the employer was not precluded "from making an agreement with a labor organization to require as a condition of employment membership therein, if such labor organization is the representative of the employees." On June 18, 1961, however, Republic Act No. 3350 was enacted, introducing an amendment to — paragraph (4) subsection (a) of section 4 of Republic Act No. 875, as follows: ... "but such agreement shall not cover members of any religious sects which prohibit affiliation of their members in any such labor organization". Being a member of a religious sect that prohibits the affiliation of its members with any labor organization, Appellee presented his resignation to appellant Union in 1962, and when no action was taken thereon, he reiterated his resignation on September 3, 1974. Thereupon, the Union wrote a formal letter to the Company asking the latter to separate Appellee f rom the service in view of the fact that he was resigning from the Union as a member. The management of the Company in turn notified Appellee and his counsel that unless the Appellee could achieve a satisfactory arrangement with the Union, the Company would be constrained to dismiss him from the service. This prompted Appellee to file an action for injunction, docketed as Civil Case No. 58894 in the Court of First Instance of Manila to enjoin the Company and the Union from dismissing Appellee. 1 In its answer, the Union invoked the "union security clause" of the collective bargaining agreement; assailed the constitutionality of Republic Act No. 3350; and contended that the Court had no jurisdiction over the case, pursuant to Republic Act No. 875, Sections 24 and 9 (d) and (e). 2 Upon the facts agreed upon by the parties during the pre-trial conference, the Court a quo rendered its decision on August 26, 1965, the dispositive portion of which reads: IN VIEW OF THE FOREGOING, judgment is rendered enjoining the defendant Elizalde Rope Factory, Inc. from dismissing the plaintiff from his present employment and sentencing the defendant Elizalde Rope Workers' Union to pay the plaintiff P500 for attorney's fees and the costs of this action. 3 From this decision, the Union appealed directly to this Court on purely questions of law, assigning the following errors: I. That the lower court erred when it did not rule that Republic Act No. 3350 is unconstitutional. II. That the lower court erred when it sentenced appellant herein to pay plaintiff the sum of P500 as attorney's fees and the cost thereof. In support of the alleged unconstitutionality of Republic Act No. 3350, the Union contented, firstly, that the Act infringes on the fundamental right to form lawful associations; that "the very phraseology of said Republic Act 3350, that membership in a labor organization is banned to all those belonging to such reli gious sect prohibiting affiliation with any labor organization" 4 , "prohibits all the members of a given religious sect from joining any labor union if such sect prohibits affiliations of their members thereto" 5 ; and, consequently, deprives said members of their constitutional right to form or join lawful associations or organizations guaranteed by the Bill of Rights, and thus becomes obnoxious to Article III, Section 1 (6) of the 1935 Constitution. 6 Secondly, the Union contended that Republic Act No. 3350 is unconstitutional for impairing the obligation of contracts in that, while the Union is obliged to comply with its collective bargaining agreement containing a "closed shop provision," the Act relieves the employer from its reciprocal obligation of cooperating in the maintenance of union membership as a condition of employment; and that said Act, furthermore, impairs the Union's ri ghts as it deprives the union of dues from members who, under the Act, are relieved from the obligation to continue as such members. 7 Thirdly, the Union contended that Republic Act No. 3350 discriminatorily favors those religious sects which ban their members from joining labor unions, in violation of Article Ill, Section 1 (7) of the 1935 Constitution; and while said Act unduly protects certain religious sects, it leaves no rights or protection to labor organizations. 8 Fourthly, Republic Act No. 3350, asserted the Union, violates the constitutional provision that "no religious test shall be required for the exercise of a civil right," in that the laborer's exercise of his civil right to join associations for purposes not contrary to law has to be determined under the Act by his affiliation with a religious sect; that conversely, if a worker has to sever his religious connection with a sect that prohibits membership in a labor organization in order to be able to join a labor organization, said Act would violate religious freedom. 9 Fifthly, the Union contended that Republic Act No. 3350, violates the "equal protection of laws" clause of the Constitution, it being a discriminately legislation, inasmuch as by exempting from the operation of closed shop agreement the members of the "Iglesia ni Cristo", it has granted said members undue advantages over their fellow workers, for while the Act exempts them from union obligation and liability, it nevertheless entitles them at the same time to the enjoyment of all concessions, benefits and other emoluments that the union might secure from the employer. 10 Sixthly, the Union contended that Republic Act No. 3350 violates the constitutional provision regarding the promotion of social justice. 11 Appellant Union, furthermore, asserted that a "closed shop provision" in a collective bargaining agreement cannot be considered violative of religious freedom, as to call for the amendment introduced by Republic Act No. 3350; 12 and that unless Republic Act No. 3350 is declared unconstitutional, trade unionism in this country would be wiped out as e mployers would prefer to hire or employ members of the Iglesia ni Cristo in order to do away with labor organizations. 13 Appellee, assailing appellant's arguments, contended that Republic Act No. 3350 does not violate the right to form lawful associations, for the right to join associations includes the right not to join or to resign from a labor organization, if one's conscience does not allow his membership therein, and the Act has given substance to such right by prohibiting the compulsion of workers to join labor organizations; 14 that said Act does not impair the obligation of contracts for said law formed part of, and was incorporated into, the terms of the closed shop agreement;15 that the Act does not violate the establishment of religion clause or separation of Church and State, for Congress, in enacting said law, merely accommodated the religious needs of those workers whose religion prohibits its members from joining labor unions, and balanced the collective rights of organized labor with the constitutional right of an individual to freely exercise his chosen religion; that the constitutional right to the free exercise of one's religion has primacy and preference over union security measures which are merely contractual 16 ; that said
Act does not violate the constitutional provision of equal protection, for the classification of workers under the Act depending on their religious tenets is based on substantial distinction, is germane to the purpose of the law, and applies to all the members of a given class; 17 that said Act, finally, does not violate the social justice policy of the Constitution, for said Act was enacted precisely to equalize employment opportunities for all citizens in the midst of the diversities of their religious beliefs." 18 I. Before We proceed to the discussion of the first assigned error, it is necessary to premise that there are some thoroughly established principles which must be followed in all cases where questions of constitutionality as obtains in the instant case are involved. All presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality must prove its invalidity beyond a reasonable doubt, that a law may work hardship does not render it unconstitutional; that if any reasonable basis may be conceived which supports the statute, it will be upheld, and the challenger must negate all possible bases; that the courts are not concerned with the wisdom, justice, policy, or expediency of a statute; and that a liberal interpretation of the constitution in favor of the constitutionality of legislation should be adopted. 19 1. Appellant Union's contention that Republic Act No. 3350 prohibits and bans the members of such religious sects that forbid affiliation of their members with labor unions from joining labor unions appears nowhere in the wording of Republic Act No. 3 350; neither can the same be deduced by necessary implication therefrom. It is not surprising, therefore, that appellant, having thus misread the Act, committed the error of contending that said Act is obnoxious to the constitutional provision on freedom of association. Both the Constitution and Republic Act No. 875 recognize freedom of association. Section 1 (6) of Article III of the Constitution of 1935, as well as Section 7 of Article IV of the Constitution of 1973, provide that the right to form associations or societies for purposes not contrary to law shall not be abridged. Section 3 of Republic Act No. 875 provides that employees shall have the right to self-organization and to form, join of assist labor organizations of their own choosing for the purpose of collective bargaining and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection. What the Constitution and the Industrial Peace Act recognize and guarantee is the "right" to form or join associations. Notwithstanding the different theories propounded by the different schools of jurisprudence regarding the nature and contents of a "right", it can be safely said that whatever theory one subscribes to, a right comprehends at least two broad notions, namely: first, liberty or freedom, i.e., the absence of legal restraint, whereby an employee may act for himself without being prevented by law; and second, power, whereby an employee may, as he pleases, join or refrain from Joining an association. It is, therefore, the employee who should decide for himself whether he should join or not an association; and should he choose to join, he himself makes up his mind as to which association he would join; and even after he has joined, he still retains the liberty and the power to leave and cancel his membership with said organization at any time. 20 It is clear, therefore, that the right to join a union includes the right to abstain from joining any union. 21 Inasmuch as what both the Constitution and the Industrial Peace Act have recognized, and guaranteed to the employee, is the "right" to joi n associations of his choice, it would be absurd to say that the law also imposes, in the same breath, upon the employee the duty to join associations. The law does not enjoin an employee to sign up with any association. The right to refrain from joining labor organizations recognized by Section 3 of the Industrial Peace Act is, however, limited. The legal protection granted to such right to refrain from joining is withdrawn by operation of law, where a labor union and an employer have agreed on a closed shop, by virtue of which the employer may employ only member of the collective bargaining union, and the employees must continue to be members of the union for the duration of the contract in order to keep their jobs. Thus Section 4 (a) (4) of the Industrial Peace Act, before its amendment by Republic Act No. 3350, provides that although it would be an unfair labor practice for an employer "to discriminate in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization" the employer is, however, not precluded "from making an agreement with a labor organization to require as a condition of employment membership therein, if such labor organization is the representative of the employees". By virtue, therefore, of a closed shop agreement, before the enactment of Republic Act No. 3350, if any person, regardless of his religious beliefs, wishes to be employed or to keep his employment, he must become a member of the collective bargaining union. Hence, the right of said employee not to join the labor union is curtailed and withdrawn. To that all-embracing coverage of the closed shop arrangement, Republic Act No. 3350 introduced an exception, when it added to Section 4 (a) (4) of the Industrial Peace Act the following proviso: "but such agreement shall not cover members of any religious sects which prohibit affiliation of their members in any such labor organization". Republic Act No. 3350 merely excludes ipso jure from the application and coverage of the closed shop agreement the employees belonging to any religious sects which prohibit affiliation of their members with any labor organization. What the exception provides, therefore, is that members of said religious sects cannot be compelled or coerced to join labor unions even when said unions have closed shop agreements with the employers; that in spite of any closed shop agreement, members of said religious sects cannot be refused employment or dismissed from their jobs on the sole ground that they are not members of the collective bargaining union. It is clear, therefore, that the assailed Act, far from infringing the constitutional provision on freedom of association, upholds and reinforces it. It does not prohibit the members of said religious sects from affiliating with labor unions. It still leaves to said members the liberty and the power to affiliate, or not to affiliate, with labor unions. If, notwithstanding their religious beliefs, the members of said religious sects prefer to sign up with the labor union, they can do so. If in deference and fealty to their religious faith, they refuse to sign up, they can do so; the law does not coerce them to join; neither does the law prohibit them from joining; and neither may the employer or labor union compel them to join. Republic Act No. 3350, therefore, does not violate the constitutional provision on freedom of association. 2. Appellant Union also contends that the Act is unconstitutional for impairing the obligation of its contract, specifically, the "union security clause" embodied in its Collective Bargaining Agreement with the Company, by virtue of which "membership in the union was required as a condition for employment for all permanent employees workers". This agreement was already in existence at the time Republic Act No. 3350 was enacted on June 18, 1961, and it cannot, therefore, be deemed to have been incorporated into the agreement. But by reason of this amendment, Appellee, as well as others similarly situated, could no longer be dismissed from his job even if he should cease to be a member, or disaffiliate from the Union, and the Company could continue employing him notwithstanding his disaffiliation from the Union. The Act, therefore, introduced a change into the express terms of the union security clause; the Company was partly absolved by law from the contractual obligation it had with the Union of employing only Union members in permanent positions, It cannot be denied, therefore, that there was indeed an impairment of said union security clause. According to Black, any statute which introduces a change into the express terms of the contract, or its legal construction, or its validity, or its discharge, or the remedy for i ts enforcement, impairs the contract. The extent of the change is not material. It is not a question of degree or manner or cause, but of encroaching in any respect on its obligation or dispensing with any part of its force. There is an impairment of the contract if either party is absolved by law fro m its performance. 22 Impairment has also been predicated on laws which, without destroying contracts, derogate from substantial contractual rights. 23 It should not be overlooked, however, that the prohibition to impair the obligation of contracts is not absolute and unqualified. The prohibition is general, affording a broad outline and requiring construction to fill in the details. The prohibition is not to be read with literal exactness like a mathematical formula, for it prohibits unreasonable impairment only. 24 In spite of the constitutional prohibition, the State continues to possess authority to safeguard the vital interests of its people. Legislation
appropriate to safeguarding said interests may modify or abrogate contracts already in effect. 25 For not only are existing laws read into contracts in order to fix the obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order. All contracts made with reference to any matter that is subject to regulation under the police power must be understood as made in reference to the possible exercise of that power. 26 Otherwise, important and valuable reforms may be precluded by the simple device of entering into contracts for the purpose of doing that which otherwise may be prohibited. The policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worthwhile a government which retains adequate authority to secure the peace and good order of society. The contract clause of the Constitution must, therefore, be not only in harmony with, but also in subordination to, in appropriate instances, the reserved power of the state to s afeguard the vital interests of the people. It follows that not all legislations, which have the effect of impairing a contract, are obnoxi ous to the constitutional prohibition as to impairment, and a statute passed in the legitimate exercise of police power, although it incidentally destroys existing contract rights, must be upheld by the courts. This has special application to contracts regulating relations between capital and labor which are not merely contractual, and said labor contracts, for being impressed with public interest, must yield to the common good. 27 In several occasions this Court declared that the prohibition against impairing the obligations of contracts has no application to statutes relating to public subjects within the domain of the general legislative powers of the state involving public welfare. 28 Thus, this Court also held that the Blue Sunday Law was not an infringement of the obligation of a contract that required the employer to furnish work on Sundays to his employees, the law having been enacted to secure the well-being and happiness of the laboring class, and being, furthermore, a legitimate exercise of the police power. 29 In order to determine whether legislation unconstitutionally impairs contract obligations, no unchanging yardstick, applicable at all times and under all circumstances, by which the validity of each statute may be measured or determined, has been fashioned, but every case must be determined upon its own circumstances. Legislation impairing the obligation of contracts can be sustained when it is enacted for the promotion of the general good of the people, and when the means adopted to secure that end are reasonable. Both the end sought and the means adopted must be legitimate, i.e., within the scope of the res erved power of the state construed in harmony with the constitutional limitation of that power. 30 What then was the purpose sought to be achieved by Republic Act No. 3350? Its purpose was to insure freedom of belief and religion, and to promote the general welfare by preventing discrimination against those members of religious sects which prohibit their members from joining labor unions, confirming thereby their natural, statutory and constitutional right to work, the fruits of which work are usually the only means whereby they can maintain their own life and the life of their dependents. It cannot be gainsaid that said purpose is legitimate. The questioned Act also provides protection to members of said religious sects against two aggregates of group strength from which the individual needs protection. The individual employee, at various times in his working life, is confronted by two aggregates of power — collective labor, directed by a union, and collective capital, directed by management. The union, an institution developed to organize labor into a collective force and thus protect the individual employee from the power of collective capital, is, paradoxically, both the champion of employee rights, and a new source of their frustration. Moreover, when the Union interacts with management, it produces yet a third aggregate of group strength from which the individual also needs protection — the collective bargaining relationship. 31 The aforementioned purpose of the amendatory law is clearly seen in the Explanatory Note to House Bill No. 5859, which later became Republic Act No. 3350, as follows: It would be unthinkable indeed to refuse employing a person who, on account of his religious beliefs and convictions, cannot accept membership in a labor organization although he possesses all the qualifications for the job. This is tantamount to punishing such person for believing in a doctrine he has a right under the law to believe in. The law would not allow discrimination to flourish to the detriment of those whose religion discards membership in any labor organization. Likewise, the law would not commend the deprivation of their right to work and pursue a modest means of livelihood, without in any manner violating their religious faith and/or belief. 32 It cannot be denied, furthermore, that the means adopted by the Act to achieve that purpose — exempting the members of said religious sects from coverage of union security agreements — is reasonable. It may not be amiss to point out here that the free exercise of re ligious profession or belief is superior to contract rights. In case of conflict, the latter must, therefore, yield to the former. The Supreme Court of the United States has also declared on several occasions that the rights in the First Amendment, which include freedom of religion, enjoy a preferred position in the constitutional system. 33 Religious freedom, although not unlimited, is a fundamental personal right and liberty, 34 and has a preferred position in the hierarchy of values. Contractual rights, therefore, must yield to freedom of religion. It is only where unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary to avoid the danger. 3. In further support of its contention that Republic Act No. 3350 is unconstitutional, appellant Union averred that said Act discriminates in favor of members of said religious sects in violation of Section 1 (7) of Article Ill of the 1935 Constitution, and which is now Section 8 of Article IV of the 1973 Constitution, which provides: No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and the free exercise and enjoyment of religious profession and worship, without discrimination and preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. The constitutional provision into only prohibits legislation for the support of any religious tenets or the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form of worship, 35 but also assures the free exercise of one's chosen form of religion within limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all designed to protect the broadest possible liberty of conscience, to allow each man to bel ieve as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good. 36 Any legislation whose effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously between the religions, is invalid, even though the burden may be characterized as being only indirect. 37 But if the stage regulates conduct by enacting, within its power, a general law which has for its purpose and effect to advance the state's secular goals, the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose without imposing such burden. 38 In Aglipay v. Ruiz 39 , this Court had occasion to state that the government should not be precluded from pursuing valid objectives secular in character even if the incidental result would be favorable to a religion or sect. It has likewise been held that the statute, in order to withstand the strictures of constitutional prohibition, must have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. 40 Assessed by these criteria, Republic Act No. 3350 cannot be said to violate the constitutional inhibition of the "no-establishment" (of religion) clause of the Constitution. The purpose of Republic Act No. 3350 is secular, worldly, and temporal, not spiritual or religious or holy and eternal. It was intended to serve the secular purpose of advancing the constitutional right to the free exercise of religion, by averting that certain persons be refused work, or be dismissed from work, or be dispossessed of their right to work and of being impeded to pursue a modest means of livelihood, by reason of union security agreements. To help its citizens to find gainful employment
whereby they can make a living to support themselves and their families is a valid objective of the state. In fact, the state is enjoined, in the 1935 Constitution, to afford protection to labor, and regulate the relations between labor and capital and industry. 41More so now in the 1973 Constitution where it is mandated that "the State shall afford protection to labor, promote full employment and equality in employment, ensure equal work opportunities regardless of sex, race or creed and regulate the relation between workers and employers. 42 The primary effects of the exemption from closed shop agreements in favor of members of religious sects that prohibit their members from affiliating with a labor organization, is the protection of said employees against the aggregate force of the collective bargaining agreement, and relieving certain citizens of a burden on their religious beliefs; and by eliminating to a certain extent economic insecurity due to unemployment, which is a serious menace to the health, morals, and welfare of the people of the State, the Act also promotes the well-being of society. It is our view that the exemption from the effects of closed shop agreement does not directly advance, or diminish, the interests of any particular religion. Although the exemption may benefit those who are members of religious sects that prohibit their members from joining labor unions, the benefit upon the religious sects is merely incidental and indirect. The "establishment clause" (of religion) does not ban regulation on conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. 43 The free exercise clause of the Constitution has been interpreted to require that re ligious exercise be preferentially aided.44 We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the constitutional provision. It acted merely to relieve the exercise of religion, by certain persons, of a burden that is imposed by union security agreements. It was Congress itself that imposed that burden when it enacted the Industrial Peace Act (Republic Act 875), and, certainly, Congress, if it so deems advisable, could take away the same burden. It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scrupples of conscience, exemptions ought to be granted unless some "compelling state interest" intervenes. 45 In the instant case, We see no such compelling state interest to withhold exemption. Appellant bewails that while Republic Act No. 3350 protects members of certain religious sects, it leaves no right to, and is silent as to the protection of, labor organizations. The purpose of Republic Act No. 3350 was not to grant rights to labor unions. The rights of labor unions are amply provided for in Republic Act No. 875 and the new Labor Code. As to the lamented silence of the Act regarding the rights and protection of labor unions, suffice it to say, first, that the validity of a statute is determined by its provisions, not by its silence 46 ; and, second, the fact that the law may work hardship does not render it unconstitutional. 47 It would not be amiss to state, regarding this matter, that to compel persons to join and remain members of a union to keep their jobs in violation of their religious scrupples, would hurt, rather than help, labor unions, Congress has seen it fi t to exempt religio us objectors lest their resistance spread to other workers, for religious objections have contagious potentialities more than political and philosophic objections. Furthermore, let it be noted that coerced unity and loyalty even to the country, and a fortiori to a labor — union assuming that such unity and loyalty can be attained through coercion — is not a goal that is constitutionally obtainable at the expense of religious liberty. 48 A desirable end cannot be promoted by prohibited means. 4. Appellants' fourth contention, that Republic Act No. 3350 violates the constitutional prohibition against requiring a reli gious test for the exercise of a civil right or a political right, is not well taken. The Act does not require as a qualification, or condition, for joining any lawful association membership in any particular religion or in any religious sect; neither does the Act require affiliation with a religious sect that prohibits its members from joining a labor union as a condition or qualification for withdrawing from a labor union. Joining or withdrawing from a labor union requires a positive act. Republic Act No. 3350 only exempts members with such religious affiliation from the coverage of closed shop agreements. So, under this Act, a religious objector is not required to do a positive act — to exercise the right to join or to resign from the union. He is exempted ipso jure without need of any positive act on his part. A conscientious religious objector need not perform a positive act or exercise the right of resigning from the labor union — he is exempted from the coverage of any closed shop agreement that a labor union may have entered into. How then can there be a religious test required for the exercise of a ri ght when no right need be exercised? We have said that it was within the police power of the State to enact Republic Act No. 3350, and that its purpose was legal and in consonance with the Constitution. It is never an illegal evasion of a constitutional provision or prohibition to accomplish a desired result, which is lawful in itself, by discovering or following a legal way to do it. 49 5. Appellant avers as its fifth ground that Republic Act No. 3350 is a discriminatory legislation, inasmuch as it grants to the members of certain religious sects undue advantages over other workers, thus violating Section 1 of Article III of the 1935 Constitution which forbids the denial to any person of the equal protection of the laws. 50 The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be treated in law as though they were th e same. The equal protection clause does not forbid discrimination as to things that are different. 51 It does not prohibit legislation which is limited either in the object to which it is directed or by the territory within which it is to operate. The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is not invalid because of simple inequality. 52 The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. 53 All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences; that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. 54 This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary. 55 In the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. 56 It is not necessary that the classification be based on scientific or marked differences of things or in their relation. 57 Neither is it necessary that the classification be made with mathematical nicety. 58 Hence legislative classification may in many cases properly rest on narrow distinctions, 59 for the equal protection guaranty does not preclude the legislature from recognizing degrees of evil or harm, and legislation is addressed to evils as they may appear. We believe that Republic Act No. 3350 satisfies the aforementioned requirements. The Act classifies employees and workers, as to the effect and coverage of union shop security agreements, into those who by reason of their religious beliefs and convictions cannot sign up with a labor union, and those whose religion does not prohibit membership in labor unions. Tile classification rests on real or substantial, not merely imaginary or whimsical, distinctions. There is such real distinction in the beliefs, feelings and sentiments of employees. Employees do not believe in the same religious faith and different religions differ in their dogmas and cannons. Religious beliefs, manifestations and practices, though they are found in all places, and in all times, take so many varied forms as to be almost beyond imagination. There are many views that comprise the broad spectrum of religious beliefs among the people. There are diverse manners in which beliefs, equally paramount in the lives of their possessors, may be
articulated. Today the country is far more heterogenous in religion than before, differences in religion do exist, and these differences are important and should not be ignored. Even from the phychological point of view, the classification is based on real and important differences. Religious beliefs ar e not mere beliefs, mere ideas existing only in the mind, for they carry with them practical consequences and are the motives of certain rules. of human conduct and the justification of certain acts. 60Religious sentiment makes a man view things and events in their relation to his God. It gives to human life its distinctive character, its tone, its happiness or unhappiness its enjoyment or irksomeness. Usually, a strong and passionate desire is involved in a religious belief. To certain persons, no single factor of their experience is more important to them than their religion, or their not having any religion. Because of differences i n religious belief and sentiments, a very poor person may consider himself better than the rich, and the man who even lacks the necessities of l ife may be more cheerful than the one who has all possible luxuries. Due to their religious beliefs people, like the martyrs, became resigned to the inevitable and accepted cheerfully even the most painful and excruciating pains. Because of differences in religious beliefs, the world has witnessed turmoil, ci vil strife, persecution, hatred, bloodshed and war, generated to a large extent by members of sects who were intolerant of other religious beliefs. The classification, introduced by Republic Act No. 3350, therefore, rests on substantial distinctions. The classification introduced by said Act is also germane to its purpose. The purpose of the law is precisely to avoid those who cannot, because of their religious belief, join labor unions, from being deprived of their right to work and from being dismissed from their work because of union shop security agreements. Republic Act No. 3350, furthermore, is not limited in its application to conditions existing at the time of its enactment. The law does not provide that it is to be effective for a certain period of time only. It is intended to apply for all times as long as the conditions to which the law is applicable exist. As long as there are closed shop agreements between an employer and a labor union, and there are employees who are prohibited by their religion from affiliating with labor unions, their exemption from the coverage of said agreements continues. Finally, the Act applies equally to all members of said religious sects; this is evident from its provision. The fact that the law grants a privilege to members of said religious sects cannot by itself render the Act unconstitutional, for as We have adverted to, the Act only restores to them their freedom of association which closed shop agreements have taken away, and puts them in the same plane as the other workers who are not prohibited by their religion from joining labor unions. The circumstance, that the other employees, because they are differently situated, are not granted the same privilege, does not render the law unconstitutional, for every classification allowed by the Constitution by i ts nature involves inequality. The mere fact that the legislative classification may result in actual inequality is not violative of the right to equal protection, for every classification of persons or things for regulation by law produces inequality in some degree, but the law is not thereby rendered invalid. A classification otherwise reasonable does not offend the constitution simply because in practice it results in some inequality. 61 Anent this matter, it has been said that whenever it is apparent from the scope of th e law that its object is for the benefit of the public and the means by which the benefit is to be obtained are of public character, the law will be upheld even though incidental advantage may occur to individuals beyond those enjoyed by the general public. 62 6. Appellant's further contention that Republic Act No. 3350 violates the constitutional provision on social justice is also baseless. Social justice is intended to promote the welfare of all the people. 63 Republic Act No. 3350 promotes that welfare insofar as it looks after the welfare of those who, because of their religious belief, cannot join labor unions; the Act prevents their being deprived of work and of the means of livelihood. In determining whether any particular measure is for public advantage, it is not necessary that the entire state be directly benefited — it is sufficient that a portion of the state be benefited thereby. Social justice also means the adoption by the Government of measures calculated to insure economic stability of all c omponent elements of society, through the maintenance of a proper economic and social equilibrium in the inter -relations of the members of the community. 64 Republic Act No. 3350 insures economic stability to the members of a religious sect, like the Igles ia ni Cristo, who are also component elements of society, for it insures security in their employment, notwithstanding their failure to join a labor union having a closed shop agreement with the employer. The Act also advances the proper economic and social equilibrium between labor unions and employees who cannot join labor unions, for it exempts the latter from the compelling necessity of joining labor unions that have closed shop agreements and equalizes, i n so far as opportunity to work is concerned, those whose religion prohibits membership in labor unions with those whose religion does not prohibit said membership. Social justice does not imply social equality, because social inequality will always exist as long as social relations depend on personal or subjective proclivities. Social justice does not require legal equality because legal equality, being a relative term, is necessarily premised on differentiations based on personal or natural conditions. 65 Social justice guarantees equality of opportunity 66 , and this is precisely what Republic Act No. 3350 proposes to accomplish — it gives laborers, irrespective of their religious scrupples, equal opportunity for work. 7. As its last ground, appellant contends that the amendment introduced by Republic Act No. 3350 is not called for — in other words, the Act is not proper, necessary or desirable. Anent this matter, it has been held that a statute which is not necessary is not, for that reason, unconstitutional; that in determining the constitutional validity of legislation, the courts are unconcerned with issues as to the necessity for the enactment of the legislation in question. 67 Courts do inquire into the wisdom of laws. 68 Moreover, legislatures, being chosen by the people, are presumed to understand and correctly appreciate the needs of the people, and it may change the laws accordingly. 69 The fear is entertained by appellant that unless the Act is declared unconstitutional, employers will prefer employing members of religious sects that prohibit t heir members from joining labor unions, and thus be a fatal blow to unionism. We do not agree. The threat to unionism will depend on the number of employees who are members of the religious sects that control the demands of the labor market. But there is really no occasion now to go further and anticipate problems We cannot judge with the material now before Us. At any rate, the validity of a statute is to be determined from its general purpose and its efficacy to accomplish the end desired, not from its effects on a particular case. 70 The essential basis for the exercise of power, and not a mere incidental result arising from its exertion, is the criterion by which the validity of a statute is to be measured. 71 II. We now pass on the second assignment of error, in support of which the Union argued that the decision of the trial court ordering the Union to pay P500 for attorney's fees directly contravenes Section 24 of Republic Act No. 875, for the instant action involves an industrial dispute wherein the Union was a party, and said Union merely acted in the exercise of its rights under the union shop provision of its existing collective bargaining contract with the Company; that said order also contravenes Article 2208 of the Civil Code; that, furthermore, Appellee was never actually dismissed by the defendant Company and did not therefore suffer any damage at all . 72 In refuting appellant Union's arguments, Appellee claimed that in the instant case there was really no industrial dispute involved in the attempt to compel Appellee to maintain its membership in the union under pain of dismissal, and that the Union, by its act, inflicted intentional harm on Appellee; that since Appellee was compelled to institute an action to protect his right to work, appellant could legally be ordered to pay attorney's fees under Articles 1704 and 2208 of the Civil Code. 73 The second paragraph of Section 24 of Republic Act No. 875 which is relied upon by appellant provides that: No suit, action or other proceedings shall be maintainable in any court against a labor organization or any officer or member thereof for any act done by or on behalf of such organization in furtherance of an industrial dispute to which it is a party, on the ground only that such act induces some other person to break a contract of employment or that it is in restraint of trade or
interferes with the trade, business or employment of some other person or with the right of some other person to dispose of his capital or labor. (Emphasis supplied) That there was a labor dispute in the instant case cannot be disputed for appellant sought the discharge of respondent by virtue of the closed shop agreement and under Section 2 (j) of Republic Act No. 875 a question involving tenure of employment is included in the term "labor dispute". 74 The discharge or the act of seeking it is the labor dispute itself. It being the labor dispute itself, that very same act of the Union in asking the employer to dismiss Appellee cannot be "an act done ... in furtherance of an industrial dispute". The mere fact that appellant is a labor union does not necessarily mean that all its acts are in furtherance of an industrial dispute. 75 Appellant Union, therefore, cannot invoke in its favor Section 24 of Republic Act No. 875. This case is not intertwined with any unfair labor practice case existing at the ti me when Appellee filed his complaint before the lower court. Neither does Article 2208 of the Civil Code, invoked by the Union, serve as its shield. The article provides that attorney's fees and expenses of litigation may be awarded "when the defendant's act or omission has compelled the plaintiff ... to incur expenses to protect his interest"; and "in any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered". In the instant case, it cannot be gainsaid that appellant Union's act in demanding Appellee's dismissal caused Appellee to incur expenses to prevent his being dismissed from his job. Costs according to Section 1, Rule 142, of the Rules of Court, shall be allowed as a matter of course to the prevailing party. WHEREFORE, the instant appeal is dismissed, and the decision, dated August 26, 1965, of the Court of First Instance of Manila, in its Civil Case No. 58894, appealed from is affirmed, with costs against appellant Union. It is so ordered. Makalintal, C.J, Castro, Teehankee, Barredo, Makasiar, Antonio, Esguerra, Muñoz Palma and Aquino, JJ., concur.
Separate Opinions FERNANDO, J, concurring: The decision arrived at unanimously by this Court that Republic Act No. 3350 is free from the constitutional infirmities imputed to it was demonstrated in a manner wellnigh conclusive in the learned, scholarly, and comprehensive opinion so typical of the effor ts of the ponente, Justice Zaldivar. Like the rest of my brethren, I concur fully. Considering moreover, the detailed attention paid to each and every objection raised as to its validity and the clarity and persuasiveness with which it was shown to be devoid of support in authoritative doctrines, it would appear that the last word has been written on this particular subject. Nonetheless, I deem it proper to submit this brief expression of my views on the transcendent character of religious freedom 1 and its primacy even as against the claims of protection to labor, 2 also one of the fundamental principles of the Constitution. 1. Religious freedom is identified with the liberty every individual possesses to worship or not a Supreme Being, and if a de votee of any sect, to act in accordance with its creed. Thus is constitutionally safeguarded, according to Justice Laurel, that "profession of faith to an active power that binds and elevates man to his Creator ...." 3The choice of what a man wishes to believe in is his and his alone. That is a domain left untouched, where intrusion is not allowed, a citadel to which the law is denied entry, whatever be his thoughts or hopes. In that sphere, what he wills reigns supreme. The doctrine to which he pays fealty may for some be unsupported by evidence, devoid of rational foundation. No matter. There is no requirement as to its conformity to what has found acceptance. It suffices that for him such a concept holds undisputed sway. That is a recognition of man's freedom. That for him is one of the ways of self- realization. It would be to disregard the dignity that attaches to every human being to deprive him of such an attribute. The "fixed star on our constitutional constellation," to borrow the felicitous phrase of Justice Jackson, is that no official, not excluding the highest, has it in his power to prescribe what shall be orthodox in matters of conscience — or to mundane affairs, for that matter. Gerona v. Secretary of Education 4 speaks similarly. In the language of its ponente, Justice Montemayor: "The realm of belie f and creed is infinite and limitless bounded only by one's imagination and thought. So is the freedom of belief, including religious belief, limitless and without bounds. One may believe in most anything, however strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal standards." 5 There was this qualification though: "But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the exercise of said religious belief clashes with the established institutions of society and with the law, then the former must yield and give way to the latter. The Government steps in and either restrains said exercise or even prosecutes the one exercising it." 6 It was on that basis that the daily compulsory flag ceremony in accordance with a statute 7 was found free from the constitutional objection on the part of a religious sect, the Jehovah's Witnesses, whose members alleged that their participation would be offensive to their religious beliefs. In a case not dissimilar, West Virginia State Board of Education v. Barnette, 8 the American Supreme Court reached a contrary conclusion. Justice Jackson's eloquent opinion is, for this writer, highly persuasive. Thus: "The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to di ffer as to things that touch the heart of the existing order." 9 There is moreover this ringing affirmation by Chief Justice Hughes of the primacy of religious freedom in the forum of conscience even as against the command of the State itself: "Much has been said of the paramount duty to the state, a duty to be recognized, it is urged, even though it conflicts with convictions of duty to God. Undoubtedly that duty to the state exists within the domain of power, for government may enforce obedience to laws regardless of scruples. When one's belief collides with the power of the state, the latter is supreme within its sphere and submission or punishment follows. But, in the forum of conscience, duty to a moral power higher than the state has always been maintained. The reservation of that supreme obligation, as a matter of principle, would unquestionably be made by many of our conscientious and law-abiding citizens. The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation." 10 The American Chief Justice spoke in dissent, it is true, but with him in agreement were three of the foremost jurists who ever sat in that Tribunal, Justices Holmes, Brandeis, and Stone. 2. As I view Justice Zaldivar's opinion in that light, my concurrence, as set forth earlier, is wholehearted and entire. With such a cardinal postulate as the basis of our polity, it has a message that cannot be misread. Thus is intoned with a reverberating clang, to paraphrase Cardozo, a fundamental principle that drowns all weaker sounds. The labored effort to cast doubt on the validity of the statutory provision in question is far from persuasive. It is attended by futility. It is not for this Court, as I conceive of the judicial function, to restrict the scope of a preferred freedom.
3. There is, however, the question of whether such an exception possesses an implication that lessens the effectiveness of state efforts to protect labor, likewise, as noted, constitutionally ordained. Such a view, on the surface, may not be lacking in plausibility, but upon closer analysis, it cannot stand scrutiny. Thought must be given to the freedom of association, likewise an aspect of intellectual liberty. For the late Professor Howe a constitutionalist and in his lifetime the biographer of the great Holmes, it even partakes of the political theory of pluralistic sovereignty. So great is the respect for the autonomy accorded voluntary societies. 11 Such a right implies at the very least that one can determine for himself whether or not he should join or refrain from joining a labor organization, an institutional device for promoting the welfare of the working man. A closed shop, on the other hand, is inherently coercive. That is why, as is unmistakably reflected in our decisions, the latest of which is Guijarno v. Court of Industrial Relations, 12 it is far from being a favorite of the law. For a statutory provision then to further curtail its operation, is precisely to follow the dictates of sound public policy. The exhaustive and well-researched opinion of Justice Zaldivar thus is in the mainstream of constitutional tradition. That, for me, is the channel to follow. Separate Opinions FERNANDO, J, concurring: The decision arrived at unanimously by this Court that Republic Act No. 3350 is free from the constitutional infirmities imputed to it was demonstrated in a manner wellnigh conclusive in the learned, scholarly, and comprehensive opinion so typical of the effor ts of the ponente, Justice Zaldivar. Like the rest of my brethren, I concur fully. Considering moreover, the detailed attention paid to each and every objection raised as to its validity and the clarity and persuasiveness with which it was shown to be devoid of support in authoritative doctrines, it would appear that the last word has been written on this particular subject. Nonetheless, I deem it proper to submit this brief expression of my views on the transcendent character of religious freedom 1 and its primacy even as against the claims of protection to labor, 2 also one of the fundamental principles of the Constitution. 1. Religious freedom is identified with the liberty every individual possesses to worship or not a Supreme Being, and if a de votee of any sect, to act in accordance with its creed. Thus is constitutionally safeguarded, according to Justice Laurel, that "profession of faith to an active power that binds and elevates man to his Creator ...." 3The choice of what a man wishes to believe in is his and his alone. That is a domain left untouched, where intrusion is not allowed, a citadel to which the law is denied entry, whatever be his thoughts or hopes. In that sphere, what he wills reigns supreme. The doctrine to which he pays fealty may for some be unsupported by evidence, devoid of rational foundation. No matter. There is no requirement as to its conformity to what has found acceptance. It suffices that for him such a concept holds undisputed sway. That is a recognition of man's freedom. That for him is one of the ways of self- realization. It would be to disregard the dignity that attaches to every human being to deprive him of such an attribute. The "fixed star on our constitutional constellation," to borrow the felicitous phrase of Justice Jackson, is that no official, not excluding the highest, has it in his power to prescribe what shall be orthodox in matters of conscience — or to mundane affairs, for that matter. Gerona v. Secretary of Education 4 speaks similarly. In the language of its ponente, Justice Montemayor: "The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought. So is the freedom of belief, including religious belief, limitless and without bounds. One may believe in most anything, however strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal standards." 5 There was this qualification though: "But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the exercise of said religious belief clashes with the established institutions of society and with the law, then the former must yield and give way to the latter. The Government steps in and either restrains said exercise or even prosecutes the one exercising it." 6 It was on that basis that the daily compulsory flag ceremony in accordance with a statute 7 was found free from the constitutional objection on the part of a religious sect, the Jehovah's Witnesses, whose members alleged that their participation would be offensive to their religious beliefs. In a case not dissimilar, West Virginia State Board of Education v. Barnette, 8 the American Supreme Court reached a contrary conclusion. Justice Jackson's eloquent opinion is, for this writer, highly persuasive. Thus: "The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." 9 There is moreover this ringing affirmation by Chief Justice Hughes of the primacy of religious freedom in the forum of conscience even as against the command of the State itself: "Much has been said of the paramount duty to the state, a duty to be recognized, it is urged, even though it conflicts with convictions of duty to God. Undoubtedly that duty to the state exists within the domain of power, for government may enforce obedience to laws regardless of scruples. When one's b elief collides with the power of the state, the latter is supreme within its sphere and submission or punishment follows. But, in the forum of conscience, duty to a moral power higher than the state has always been maintained. The reservation of that supreme obligation, as a matter of principle, would unquestionably be made by many of our conscientious and law-abiding citizens. The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation." 10 The American Chief Justice spoke in dissent, it is true, but with him in agreement were three of the foremost jurists who ever sat in that Tribunal, Justices Holmes, Brandeis, and Stone. 2. As I view Justice Zaldivar's opinion in that light, my concurrence, as set forth earlier, is wholehearted and entire. With such a cardinal postulate as the basis of our polity, it has a message that cannot be misread. Thus is intoned with a reverberating clang, to paraphrase Cardozo, a fundamental principle that drowns all weaker sounds. The labored effort to cast doubt on the validity of the statutory provision in question is far from persuasive. It is attended by futility. It is not for this Court, as I conceive of the judicial function, to restrict the scope of a preferred freedom. 3. There is, however, the question of whether such an exception possesses an implication that lessens the effectiveness of state efforts to protect labor, likewise, as noted, constitutionally ordained. Such a view, on the surface, may not be lacking in plausibility, but upon closer analysis, it cannot stand scrutiny. Thought must be given to the freedom of association, likewise an aspect of intellectual liberty. For the late Professor Howe a constitutionalist and in his lifetime the biographer of the great Holmes, it even partakes of the political theory of pluralistic sovereignty. So great is the respect for the autonomy accorded voluntary societies. 11 Such a right implies at the very least that one can determine for himself whether or not he should join or refrain from joining a labor organization, an institutional device for promoting the welfare of the working man. A closed shop, on the other hand, is inherently coercive. That is why, as is unmistakably reflected in our decisions, the latest of which is Guijarno v. Court of
Industrial Relations, 12 it is far from being a favorite of the law. For a statutory provision then to further curtail its operation, is precisely to follow the dictates of sound public policy. The exhaustive and well-researched opinion of Justice Zaldivar thus is in the mainstream of constitutional tradition. That, for me, is the channel to follow. G.R. No. 43263, Manila Trading & Supply Co. v. Reyes, 62 Phil. 461 Republic of the Philippines SUPREME
COURT
Manila EN BANC October 31, 1935 G.R. MANILA
No. TRADING
&
43263 CO., plaintiff-appellant,
SUPPLY
vs. E.M. REYES, defendant-appellee. Ross, Lawrence and Selph Isabel Artacho-Ocampo for appellee. MALCOLM, J.:
and
Antonio
T.
Carrascoso,
Jr.,
for
appellant.
The only question presented is the validity of Act of Act No. 4122, known as the Installment Sales Law, reading as follows: AN ACT TO AMEND THE CIVIL CODE BY INSERTING BETWEEN SECTlONS FOURTEEN HUNDRED AND FIFTY-FOUR AND FOURTEEN HUNDRED AND FIFTY-FIVE THEREOF A NEW SECTION, TO BE KNOWN AS SECTION F OURTEEN HUNDRED AND AND FIFTY-FOUR-A. Be it enacted by the Senate and House of Representatives of the Philippines in Legislature assembled and by the aut hority of the same: SECTION 1. The Civil Code is hereby amended by inserting between sections fourteen hundred and fifty-four and fourteen hundred and fifty-five thereof a new section, to be known as section fourteen hundred and fifty-four-A, which shall read as follows: "SEC. 1454-A. In a contract for the sale of personal property payable in installments, failure to pay two or more installments shall confer upon the vendor the right to cancel the sale or foreclose the mortgage if one has been given the property, without reimbursement to the purchaser of the installments already paid, if there be an agreement to this effect. "However, if the vendor has chosen to foreclose the mortgage he shall have no further action against the purchaser for the recovery of any unpaid balance owing by the same, and any agreement to the contrary shall be null and void. "The same rule shall apply to leases of personal property with option to purchase, when the lessor has chosen to deprive the lessee of the enjoyment e njoyment of such personal property." SEC 2. This Act shall take effect on its approval. Approved, December 9, 1933. There is no dispute as to the facts. They may be summarize as follows: On December 13, 1933 — that is, subsequent to the enactment of Act of Act No. 4122 — E.M. Reyes executed in favor of the Manila Trading & Supply Co., a chattel mortgage on an automobile as security for the payment of the sum of P400, which Reyes agreed to pay in ten equal monthly installments. As found by the trial judge, Reyes failed to pay some of the installments due on his obligation. Thereupon the Manila Trading & Supply Co., proceeded to foreclose its chattel mortgage. The mortgaged property was sold at public auction by the sheriff of the City of Manila for the sum of P200, After applying this sum, with interest, costs, and liquidated damages to Reyes' indebtedness, the latter owed the company a balance of P275.47, with interest thereon at the rate of 12 percent per annum from February 19, 1934. When Reyes failed to pay the deficiency on the debt, the company instituted an action in the Court of First Instance of Manila for the recovery thereof. To plaintiff's complaint defendant filed an answer in which he pleaded as a defense that plaintiff, having chosen to foreclose its chattel mortgage, had no further action against defendant for the recovery of the unpaid balance owed by him to plaintiff, as provided by Act No. 4122. After 4122. After trial the lower court sustained defendant's defense and rendered a judgment absolving him from the complaint, with costs. From this judgment, the plaintiff has taken an appeal and here contends that the lower court erred in not declaring Act No. 4122 of the Philippine Legislature unconstitutional for the following reasons: (1) in that it embraces more than one subject, (2) in that it unduly restrains the liberty of a person to contract with respect to his property rights, (3) in that it i s class leg islation, and (4) in that it denies vendors and lessors of personal property the equal protection of the laws. 1. Title of the Law. — Act Act No. 4122 is entitled, "An Act to amend the Civil Code by inserting between sections fourteen hundred and fifty-four and fourteen, hundred and fifty-five thereof a new section, to be known as section fourteen hundred and fifty-fourA." It is argued that the Act amends the Civil Code and the Chattel Mortgage Law ,Act No. 1508. As 1508. As a consequence, it is alleged, that one of the subjects covered by the Act, the amendment of the Chattel Mortgage Law, is not expressed in the title thereof, in violation of section 3 of the Organic Act, the Act of Congress of August 29, 1916 which provides that no bill which may be enacted into law shall embrace more than one subject, and that subject shall be expressed in the title of the bill." We think that this is taking altogether too narrow and technical a view of the matter. Legislation should not be embarrassed by overly strict construction. The constitutional provision, while designed to remedy an evil, was not designed to require great particularity in stating the object of the law in its title. In reality, while Act No. 4122deals 4122 deals with three subjects, sales of personal property on the installment plan, chattel mortgages, and leases of personal property with option to repurchase, all three are comprehended within the subject of installment payments. (Macondray & Co. vs. R. de Santos [1935], 61 Phil., 370.) It would be well, however, to scrutinize this point a little more closely. The portion of the Civil Ci vil Code which is amended is Book IV, Title IV having to do with contract of purchase and sale and Chapter I having to do with the nature and form of this contract. The Chattel Mortgage Law, in section 3, defines a chattel mortgage as conditional sale of personal property as security for the payment a debt or the performance of some other obligation specified therein. The close analogy between chattel mortgages as covered by Act by Act No. 1508 and conditional sales as covered by the Civil Code gave this court considerable difficulty, but eventually it was determined that a chattel mortgage, under Act under Act No. 1508 is not of the Same effect as a contract of purchase and sale with right of repurchase under the Civil Code. (Manila Trading & Supply Co. vs. Tamaraw Plantation Co. [1925], 47 Phil., 513, reconciling Meyers 513, reconciling Meyers vs. Thein [1910], 15 Phil., 303 303;Bachrach ;Bachrach vs. Mantel [1913] 25 Phil., 410, and Bachrach Motor Co. vs. Summers [1921], 42 Phil., 3.) 3.) Likewise the close relationship between chattel mortgages and conditional sales in other jurisdictions is evidenced by the fact that a well-known text writer saw fit to choose this as the title for his work. (Jones, Chattel Mortgages and Conditional Sales, 1933 ed.) It could be added, if necessary, that the general rule is adopted in this jurisdiction to the effect that a title which declares a statute to be an act to amend a specific code is sufficient and the precise nature of the amendatory act need not be further stated. (People vs. Buenviaje [1925], 47 Phil., 536.) On the supposition, therefore, which seems reasonable, that the purpose had in mind by the Legislature in enacting Act No. 4122was 4122 was to provide legislation concerning sales of personal property on the installment plan, this subject was sufficiently expressed by indicating that the law had to do with an amendment of the Civil Code in the portion thereof given up to contract of purchase and sale.
2. Liberty of contract, class legislation, and equal protection of the laws. — The The question of the validity of an act is solely one of constitutional power. Questions of expediency, of motive, or of results are irrelevant. Nevertheless it is not improper to inquire as to the occasion for the enactment of a law. The legislative purpose thus disclosed can then serve as a fit background for constitutional inquiry. Judge Moran in first instance had the following to say relative to the reasons for the enactment of Act No. 4122: Act No. 4122 aims to correct a social and economic evil, the inordinate love for luxury of those who, without sufficient means, purchase personal effects, and the ruinous practice of some commercial houses of purchasing back the goods sold for a nominal price besides keeping a part of the price already paid and collecting the balance, with stipulated interest, costs, and attorney's fees. For instance, a company sells a truck for P6,500. The purchaser makes down payment of P500, the balance to be paid in twenty-four equal installments of P250 each. Pursuant to the practice before the enactment of Act No. 4122, 4122, if the purchaser fails to pay the first two installments, the company takes possession of the truck and has it sold to at public auction at which sale it purchases the truck for a nominal price, at most P500, without prejudice to its right to collect the balance of P5,500, plus interest, costs and attorney's fees. As a consequence, the vendor does not only recover the goods sold, used hardly two months perhaps with only slight wear and tear, but also collects the entire stipulated purchase price, which probably swelled up fifty per cent including interest, costs, and attorney's fees. This practice is worse than usurious in many instances. And although, of course, the purchaser must suffer the consequences of his imprudence and lack of foresight, the chastisement must not be to the extent of ruining the vendor in a manner which shocks the conscience. The object of the law is highly commendable. As to whether or not the means employed to do away with the evil above-mentioned are arbitrary will be presently set out. In a case which readied this court, Mr. Justice Goddard, interpreting Act No. 4122, made 4122, made the following observations: Undoubtedly the principal object of the above amendment was to remedy the abuses committed in connection with the foreclosure of chattel mortgages. This amendment prevents mortgagees from seizing the mortgaged property, buying it at foreclosure sale for a low price and then bringing suit against the mortgagor for a deficiency judgment. The almost invariable result of this procedure was that the mortgagor found himself minus the property property and still owing practically the full amount of his original indebtedness. Under this amendment the vendor of personal property, the purchase price of which is payable in installments, has the right to cancel the sale or foreclose the mortgage if one has been given on the property. Whichever right the vendor elects he need not return to the purchaser the amount of the installments already paid, "if there be an agreement to that effect". Furthermore, if the vendor avails himself of the right to foreclose the mortgage this amendment prohibits him from bringing an action against the purchaser for the unpaid balance. In other words, under this amendment, in all proceedings for the foreclosure of chattel mortgages, executed on chattels which have been sold on the installment plan, the mortgagee is limited to the property included in the mortgage." (Bachrach Motor Co. vs. Millan [1935], 61 Phil., 409.) Public policy having thus had in view the objects just outlined, we should next examine the law to determine if notwithstanding that policy, it violates any of the constitutional principles dealing with the three general subjects here to be considered. In an effort to enlighten us, our attention has been directed to certain authorities, principally one coming from the State of Washington and another from the State of Oregon. For reasons which will soon appear, we do not think that either decision is controlling. In 1897, an Act was passed in the State of Washington which provided "that in all proceedings for the foreclosure of mortgages hereafter executed, or on judgments rendered upon the debt thereby secured, the mortgagee or assignee shall be limited to the property included in the mortgage." It was held by a divided court of three to two that the statute since limiting the right to enforce a debt secured by mortgage to the property mortgaged, whether realty or chattels, was an undue restraint upon the liberty of a citizen to contract with respect to his property rights. But as is readily apparent, the Washington law and the Philippine law are radically different in phraseology and in effect (Dennis vs. Moses [1898], 40 L.R.A., 302.) In Oregon, in a decision of a later date, an Act abolishing deficiency judgments upon the foreclosure of mortgages to secure the unpaid balance of the purchase price of real property was unanimously sustained by Supreme Court of that State. The importance of the subject matter in that jurisdiction was revealed by the fact tat four separate opinions were prepared by the justices participating, in one of which Mr. Justice Johns, shortly thereafter to become a member of this court, concurred. However, it is but fair to state that one of the reasons prompting the court to uphold the law was the financial depression which had prevailed in the State. While in the Philippines the court can take judicial notice of the stringency of finances that presses upon the people, we have no reason to believe that this was the reason that motivated the enactment of Act No. 4122. (Wright vs. Wimberly [1919], 184 Pac., 740.) While we are on the subject of the authorities, we may state that we have examined all of those obtainable, including some of recent date, but have not been enlightened e nlightened very much because as just indicated, they concerned different states of facts and different laws. We gain the most help from the case of Bronson vs. Kinzie ([1843], 1 How., 311), decided by the Supreme Court of the United States. It had under consideration a law passed in the State of Illinois, which provided that the equitable estate of the mortgagor should not be extinguished for twelve months after sale on decree, and which prevented any sale of the mortgaged properly unless two-thirds of the amount at which the property had been valued by appraisers should be bid therefor. The court, by Mr. Chief Justice Taney, declared: "Mortgages made since the passage of these laws must undoubtedly be governed by them; for every State has the power to describe the legal and equitable obligations of a contract to be made and executed within its jurisdiction. It may exempt any property it thinks proper from sale, for the payment of a debt; and may impose i mpose such conditions and restrictions upon the creditor as its judgment and policy may dictate. And all future contracts would be subject to such provisions; and they would be obligatory upon the parties in the courts of the United States, as well as in t hose of the State. As we understand it, parties have no vested right in i n particular remedies or modes of procedure, and the Legislature may change existing remedies or modes of procedure without impairing the obligation of contracts, provided an efficacious remedy remains enforcement. But changes in the remedies available for the enforcement of a mortgage may not, even when publicly policy is invoked as an excuse, be pressed so far as to cut down the security of a mortgage without moderation or reason or in a spirit of oppression. (Brotherhood of American Yeoman vs. Manz [1922], 206 Pac., 403; Oshkosh Waterworks Co. vs. Oshkosh [1903], 187 U.S., 437; W.B. Worthen Co. vs. Kavanaugh [1935], 79 U.S. Supreme Court Advance Advance Opinions, 638.) In the Philippines, the Chattel Mortgage Law did not expressly provide for a deficiency judgment upon the foreclosure of a mortgage. Indeed, it required decisions of this court to authorize such a procedure. (Bank of the Philippine Islands vs. Olutanga Lumber Co. [1924], 47 Phil., 20; Manila Trading & Supply Co. vs. Tamaraw Plantation Co., supra.) But the practice became universal enough to acquire the force of direct legislative enactment regarding procedure. To a certain extent the Legislature has now disauthorized this practice, but bas left a sufficient r emedy remaining. Three remedies are available to the vendor who has sold personal property on the installment plan. (1) He may elect to exact the fulfillment of the obligation. (Bachrach Motor Co. vs. Millan, supra.) (2) If the vendee shall have failed to pay two or more installments, the vendor may cancel the sale. (3) If the vendee shall have failed to pay two or more installments, the vendor may foreclose the mortgage, if one has been given on the property. The basis of the first option is the Civil Code. The basis of the last two options is Act No. 4112, amendatory of the Civil Code. And the proviso to the right to foreclose is, that if the vendor has
chosen this remedy, he shall have no further action against the purchaser for the recovery of any unpaid balance owing by the same. In other words, as we see it, the Act does no no more than qualify the remedy. Most constitutional issues are determined by the court's approach to them. The proper approach in cases of this character should be to resolve all presumptions in favor of the validity of an act in the absence of a clear conflict between it and the constitution. All doubts should be resolved in its favor. The controlling purpose of of Act No. 4122 is revealed to be to close the door to abuses committed in connection with the foreclosure of chattel mortgages when sales were payable in installments. That public policy, obvious from the statute, was defined and established by legislative authority. It is for the courts to perpetuate it. We are of the opinion that the Legislature may change judicial methods and remedies for the enforcement of contracts, as it has done by the enactment of Act No. 4122, without 4122, without unduly interfering with the obligation of the contracts, without sanctioning class legislation, and without a denial of the equal protection of the laws. We rule tha tAct No. 4122 is valid and enforceable. As a consequence, the errors assigned by the appellant are overruled, and the judgment affirmed, the costs of this instance to be taxed against the losing party. Avanceña, C.J., Villa-Real, Abad Santos, Hull, Hull, Vickers, Goddard, Diaz, and Recto, JJ., concur.
G.R. No. L-20479 February 6, 1925 YU CONG ENG, ET AL., petitioners, vs. W. TRINIDAD, Collector of Internal Revenue, ET AL., respondents. Gabriel La O, Palma and Leuterio and Gibbs and McDonough for petitioners. The City Fiscals Revilla, Guevara and Felix for respondents.
MALCOLM, J.: The issue in these proceedings is the validity of Act No. 2972 of the Philippine Legislature, popularly known as the Chinese Bookkeeping Law. It is a question of paramount importance which the record shows, has been laid before this court following the failure of diplomatic negotiations and executive pressure to secure from the local law-making body either the repeal of the law or a modification of its provisions. It is, moreover, a question which, extensive argument and original investigation disclose, stands in the shadowland betwixt constitutionality and unconstitutionality, to the solution of which we propose to give careful consideration. The petitioners are Chinese merchants claiming to represent themselves and all other persons similarly situated and affected, particularly twelve thousand Chinese merchants. The respondents, against whom the petition for prohibition and injunction is directed, are the Collector of Internal Revenue, the Fiscal of the Ci ty of Manila, and Honorable Pedro Concepcion, Judge of First Instance of Manila. The allegations of the petition center on the unconstitutionality of Act No. 2972 above -mentioned. To the petition (later amended), a demurrer was interposed by the respondents which met squarely the main issue of constitutionality, while raising, in addition, the preliminary question of jurisdiction. Following oral argument, the court overruled respondents' demurrer and required them to answer. To respondents' answer to the amended petition, petitioners presented a demurrer. In order that the court might be assisted by having before it all possible facts and circumstances which might aid it in arriving at a correct conclusion, the parties were permitted to offer evidence to substantiate their claims. Nearly one thousand pages of testimony, more or less relevant to the issue, have resulted. While all of this testimony has been gone over with painstaking care, it is not feasible for the court to encumber the decision with rulings on the multitudinous objections which have perfunctorily been raised before the commissioner. Before passing to our principal task, it is necessary to say something about the preliminary point of jurisdiction argued by counsel, relating to the propriety of the constitutional constitutional question being decided in original proceedings in prohibition. The Supreme Court is granted both concurrent jurisdiction in prohibition with Courts of First Instance over inferior tribunals or persons, and original jurisdiction over Courts of First Instance when such courts are exercising functions without or in excess of their jurisdiction. (Code of Civil Procedure, sec. 516.) It is a jurisdiction, however, which must be exercised circumspectly, for otherwise, the court would usurp the powers of judges of First Instance. The law havin g given to judges of First Instance jurisdiction to try criminal cases, the appellate court should not meddle with the initiation or trial of such cases, except for good reasons, and should not permit the substitution of extraordinary proceedings for appeal. As before held by this court, and by the Federal courts, equity has power, to be exercised in power cases, to restrain criminal prosecutions under unconstitutional unconstitutional statutes, and to grant preliminary injunctions where the constitutionality of a given pen al law is doubtful and fairly debatable, and permanent injunctions injunctions where the laws are held invalid. The remedy r emedy by injunction to restrain the enforcement of unconstitutional statutes or abuse of authority under a valid statute, seems to be limited to cases where property rights are threatened with irreparable injury or where persons would be subjected to a multiplicity of suits. A more complicated question arises, with reference to what stage of a threatened criminal prosecution, an accused person shall have the right to test the validity of a criminal statute by means of original proceedings presented in the appellate court. We believe the correct principle was announced in Cadwallader-Gibson Lumber Co. vs. Del Rosario ( [1913], 26 Phil., 192). In other words, as a general rule, the question of constitutionality must be raised in the lower court and that court must be given an opportunity to pass upon the question before it may be presented to the appellate court for resolution. Yet occasionally, under a recently enacted statute affecting numerous persons and extensive property rights, liable to give rise to a multiplicity of actions and numerous prosecutions, prosecutions, it is proper, right at the threshold of a prosecution, to have the validity of a given law determined determi ned in the interest of the accused and of the public, so as to permit of the orderly administration of justice. (Ex parte Young [1908], 209 U.S., 123; Truax vs. Raich [1915], 239 U. S., 33; Wilson vs. New and Ferris [1917], 243 U. S., 332; Hammer vs. Dagenhart [1918], 247 U.S., 251; International News Service vs. Associated Press [1918], 248 U.S., 215; C. A. Weed & Co. vs. Lockwood [1920], 255 U.S., 104; Terrace vs. Thompson [1923], 263 U.S., 197; Young vs. Rafferty [1916], 33 Phil., 556; Kwong Sing vs. City of Manila [1920], 41 Phil., 103; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304; and Fleischmann, Injunctions Restraining Prosecution Under Unconstitutional Unconstitutional Statutes, 9 American Bar Associations Journal, March, 1923, p. 169.) Inasmuch as the property and personal rights of nearly twelve thousand merchants are affected by these proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the interest of the public welfare and for the advancement of public policy, we have determined to overrule the defense of want of jurisdiction in order that we may decide the main issue. We have here an extraordinary situation which calls for a relaxation of the general rule. We come then to take up the question of the validity of Act No. 2972. Said Act reads as follows: No. 2972. — AN AN ACT TO PROVIDE IN WHAT LANGUAGE ACCOUNT BOOKS SHALL BE KEPT, AND TO ESTABLISH PENALTIES FOR ITS VIOLATION. Be it enacted by the Senate and House of Representatives of the Philippines in Legislature assembled and by the authority of the same:
SECTION 1. It shall be unlawful for any person, company, partnership or corporation engaged in commerce, industry or any other activity for the purpose of profit in the Philippine Islands, in accordance with existing law, to keep its account books in any language other than English, Spanish or any local dialect. SEC. 2. Any person violating the provisions of this Act shall, upon conviction, be punished by a fine of not more than ten th ousand pesos, or by imprisonment for not more than two years or both. SEC. 3. This Act shall take effect on November first, nineteen hundred and twenty-one. Approved, February 21, 1921. Subsequently, pursuant to the provisions of Act No. 2998, Act No. 2972 was made to take effect on January 1, 1923. But due to the unavailing efforts of the Secretary of War, the present Governor-General, and the Chinese Community to have Act No. 2972 repealed, so counsel for the petitioners intimates, its enforcement was suspended until the adjournment of the Legislature in February, 1923. On March 2, 1923, the agents of the Bureau of I nternal Revenue, in the exercise of their legitimate functions, inspected the books of account of the Chinese merchant Yu Cong Eng. Upon finding that said books were not kept in accordance with their understanding of the provisions of Act No. 2972, they took possession of the merchant's books and referred the matter to the city fiscal of Manila for appropriate action. The city fiscal, considering that Yu Cong Eng had committed a violation of the law, on March 7, 1923, caused an information to be filed, subscribed, and sworn to before Judge of First Instance Concepcion, thereby giving rise to criminal case No. 25551 of the Court of First Instance of Manila. This information alleged in substance that the accused merchant had kept his books of account "only in Chinese, instead of keeping or causing them to be kept in English, Spanish, or any local dialect, thus rendering i t difficult for the agents and authorized representatives of the Government of the Philippine Islands and of the City of Manila, to examine and inspect the aforementioned books of account, thereby preventing and hindering the investigation and determination of all the amount that said accused was, is, or will be under obligation to pay for licenses, permits, and taxes." A warrant of arrest was issued by the Judge of First Instance before whom the information was filed, and in compliance therewith, the accused merchant, now become the instant petitioner, was arrested. The antecedents of these proceedings, therefore, do not affect directly any other person except the petitioner Yu Cong Eng who says that he neither reads, writes, nor understands the English or Spanish language or any local dialect, although infere ntially affecting all other merchants in a like situation. To properly appreciate the situation, we must go back a little further into the history of the case and must have before us the applicable provisions of Philippine law. The sales tax has been in force in the Philippines for a number of years. Our law provides for privilege taxes to be levied on certain businesses and occupations. These percentage taxes on business are payable at the end of each calendar quarter in the amount lawfully due on the business transacted during the past quarter. It is made the duty of every person conducting a business subject to such tax, within the same period as is allowed for the payment of the quarterly installments of the fixed taxes without penalty, to make a true and complete return of the amount of the receipts or earnings of his business during the preceding quarter and pay the tax due thereon. All merchants not specifically exempted must pay a tax of one and one-half per cent on the gross value in money of the commodities, goods, wares, merchandise sold, bartered, exchanged, or consigned abroad by them, such tax to be based on the actual selling price or value of the things in question at the time they are disposed of or consigned. (Administrative Code, secs. 1453 et seq.; Act No. 3065.) The income tax has also been established here for sometime, first pursuant to an Act of Congress and later pursuant to an Act of the Philippine Legislature (Act No. 2833, as amended by Act No. 2926). The customary returns are required from individuals and corporations. The tax is computed and the assessments are made by the Collector of Internal Revenue and his agents. The sales tax and the income tax furnish a substantial part of the revenue. Roughly speaking, about P10,000,000 from the sales tax and about P2,000,000 from the income tax are secured annually. (Exhibit 13.) Any appreciable leaks in these sources of governmental revenue would be highly undesirable. At the time the Internal Revenue Law of the Philippine Islands was originally enacted, the Spanish Code of Commerce was in force, and this Code still remains the centerpiece of our commercial system, although considerably battered by amendatory laws. The Code of Commerce provides that merchants shall keep: (1) A book of inventories an d balances; (2) a daybook; (3) a ledger; (4) a copying book for letters and telegrams; and (5) the other books required by speci al laws. These books are supposed to be presented by merchants to a justice of the peace for authentication. Merchants may furthermore keep other books that they consider advisable, according to the system of bookkeeping adopted. (Code of Commerce, arts. 33 et seq.; Administrative Code, sec. 214; Blanco, Derecho Mercantil, Tomo 1, pp. 561, 562.) The Spanish Code of Commerce, it is thus seen, is silent as are all the codes which follow the French system, regarding the language in which books of account must be kept. Under the provisions of the Code of Commerce and of the Internal Revenue Law, the Collector of Internal Revenue had authority "to require the keeping of a daily record of sales. No one could say with any certainty what the amount of the tax would be without such data." (Young vs. Rafferty, supra.) The c ollector of Internal Revenue was also granted the power to make regulations prescribing the manner in which the proper books, invoices, and other papers shall be kept, and entries therein made by the persons subject to the merchant's tax. (Act No. 2339, secs. 5, 6 [j]; Administrative Code, sec. 1424 [j].) Taking advantage of his supposed authority, pursuant to the above cited provisions of law, the Collector of Internal Revenue issued a circular letter on October 8, 1914, approved by the Secretary of Finance and Justice, requiring every merchant and t he manufacturer with certain specified exceptions, who was subject to the merchant's tax, to keep a record of their daily sales either in the English or the Spanish language. The validity of this regulation was challenged in the case of Young vs. Rafferty, supra. The defense of the Collector of Internal Revenue was that the regulation issued by him had for its object the protection of the Government and to prevent the non-payment of the merchant's and the percentage taxes. Following trial in the lower court and appeal, the Supreme Court held that sections 5 and 6 of Act No. 2339 did not empower the Collector of Internal Revenue to designate the language in which the entries in such books are made by merchants subject to the percentage tax. Omitting portions of the opinion handed down by Mr. Justice Trent, some of which will be noticed in other connections, it is only necessary for us to quote the portion which deals with the subject at hand, namely: It is also urge that the regulation is designed to protect the Government against evasion of the percentage tax. If it be necessary to impose such a burden upon so large a number of the business community in order that the Government may protect itself from such losses, we apprehend that it was never intended that the initiative should be taken by the Collector of Internal Revenue. The condition complained of by the Collector has confronted the Government ever since the present system of internal revenue taxes was inaugurated in 1904. It i s not for the administrative head of a Government bureau to say that such an obstacle to the collection of taxes shall be removed by imposing burdens not specifically authorized in the law itself. In view of the fact that a particular language is not essential to the recording of the information desired by t he Collector and the enforcement of the objectionable provisions of his circular would be a very important step in the solution of the language problem in this country, amounting, we believe, to a question of public policy which should not be dictated by any administrative authority, we must conclude that the Collector has exceeded his authority in this particular. In reaching this conclusion, we have carefully avoided using any language which would indicate our views upon the plaintiffs' second
proposition to the effect that if the regulation were an Act of the Legislature itself, it would be invalid as being in conflict with the paramount law of the land and the treaties regulating certain relations with foreigners. (Emphasis ours.) Mr. Justice Carson, in a concurring opinion of some importance as will hereafter be e mphasize, said: I concur, on the ground that under the order of the Collector, if strictly enforced, the tens of thousand of merchants, petty storekeepers and others affected by its terms, both native and foreign, who have no adequate knowledge of either English or Spanish, would be required in effect not only to keep a record of the results of their business transactions in English or Spanish, but also to conduct such transactions in one or other of those languages. I do not question the authority of the Collector to prescribe rules for the keeping of such records or transcripts of records of the results of mercantile transactions as may be reasonably necessary in order to eliminate fraud or concealment, and to expedite the labors of those charged with the collection of taxes: but I do not think that he was any authority to require the keeping of the original record of the vast number of these transactions in a tongue unknown to the parties; and I think furthermore that his authority to prescribe regulations intended to expedite the collection of taxes of this nature, is necessarily limited to the promulgation of regulations reasonably necessary to the end. As will at once be noticed, the Supreme Court limited its decision to the annulment of the circular of the Collector of Internal Revenue. It left for the Legislature to determine if a law on the subject should be enacted, without expressing any opinion as to the validity of such a law. Following some agitation on the subject, the then Governor-General, in a message to the Legislature on October 16, 1920, recommended for consideration "Legislation as already approved by the Senate should require that all business houses keep their books in English or Spanish, or in any one of the local Philippine dialects, in order to avoid wholesale frauds upon the Public revenues." The bill was presented in the House of Representatives by Representative Urgello with the following explanatory note: As all of the merchants doing business in the Philippines are not of the same nationality, some of them keep their books of account in their native language. The examination of these books by the agents of the Government for their proper verification, is made with some difficulty, inasmuch as in many cases it requires the help of a translator which constitutes an expense to the public treasury. Uniformity and facility in the examination and investigation of these books require that the same be kept by the merchants, whether individuals or corporations, in English or Spanish. This is the object of the attached bill. After the Philippine Legislature had passed Act No. 2972, the present Governor-General in a message asked for either the re peal or a modification of the law. Hearings before committees of the Legislature were permitted. According to the report prepared and submitted by the Chairman of the Committee on Revision of Laws of the House of Representatives, which we feel at liberty to take into consideration, at the hearing before his committee the representatives of the Chinese community advocated the repeal of Act No. 2972, but this was strongly opposed by the representatives of the Bureau of Audits, and the Bureau of Internal Revenue. The representative of the Bureau of Internal Revenue, Mr. Posadas, "gave repeated assurances before the Committee that due to the unintelligibility of the books of Chinese merchants, because of the language in which the same was written, the public treasury was being defrauded annually in several millions of pesos, and that in order to protect the Government it is necessary to uphold Act No. 2972." (Exhibit 3.) Eventually, the Philippine Legislature, with the exception that it postponed the taking effect of the law, refused otherwise to modify it. There has next followed the instant proceedings, by means of which an expression of opinion is sought to settle the conflict of views as to the constitutionality of Act No. 2972. The law is attacked by the petitioners as in violation of treaty and constitutional rights of Chinese merchants, domiciled in the Philippine Islands. It is contended with marked earnestness, that the law is unreasonable and oppressive in nature, and repugnant to the provisions of the Fourteenth Amendment to the Constitution of the United States and of the corresponding provisions of the Jones Law, the Act of Congress of August 29, 1916, guaranteeing to all persons the equal protection of the laws. The law is defended by the city fiscal of Manila as a proper and reasonable ex ercise of the police power of the Philippine Government, and of its power of taxation. Four questions suggest themselves for discussion. What would be the probable effect, if Act No. 2972 was put i n operation? What was the purpose of the Legislature in enacting Act No. 2972? What are the respective legal rights of the Chinese and of the Government? What is a logical construction of Act No. 2972? In connection with the first question, it is, of course, undeniable that we cannot declare a legislative Act void because it conflicts with our opinion of what is just or expedient. Nevertheless, the effects and consequences enter with more or less force into consideration, whenever the validity of any law is in issue. (See 2 Lewis' Sutherland Statutory Construction, pp. 908 et seq.) The pleadings, the evidence, and the decision in Young vs. Rafferty, supra, disclose with regard to the mercantile life of the Philippines, the following facts: There are approximately 85,000 merchants of all nationalities in the Philippines, to whom Act No. 2972 applies. Of this number, 71,000 are Filipinos who may use their own dialects, they prefer English or Spanish. Approximately 1,500 are American, British, or Spanish subjects, who are permitted to use their native languages. Possibly 500 are foreign nationalities most of whom know the English or Spanish language. Of the remainder, between 10,000 and 12,000 are Chinese. The aggregate commercial business transacted by the Chinese merchants represents about sixty per cent of the total business done by all the merchants in the Philippine Islands. According to Mr. H.B. Pond, vice-president and general manager of the Pacific Commercial Company, the Chinese "are the principal distributing factors in the Philippine Islands of i mported goods, and the principal gatherers of goods for exportation in the more remote places," and if the Chinese were driven out of the business, "there would be no other system of distribution available throughout the Islands." It is further claimed, on the one hand, that not to exceed one per cent of the Chinese merchants in the Philippine Islands understand English, Spanish, or a local dialect sufficiently well to be able to keep or revise their own books of account in any one of these languages, and that not to exceed ten per cent have even a working knowledge of either English, Spanish, or a local dialect, and on the other hand, that at least two-thirds of the Chinese businessmen can easily comply with the law. Counsel for the petitioners is sponsor for the sweeping statement that "the enforcement of Act 2972 would probably cause more damage and less good than any other law which has been enacted in the world." This strong stand is to a certain extent corroborated by resolutions adopted and signed by the principal business house in the City of Manila and by a number of chambers of commerce (Exhibits C, D, E, F, G, H, I, and J, attached to the petition); by the vigorous protest of the Chinese foreign office (Exhibit K); by the opinions expressed by high officials in th e War Department "that the law is fundamentally unwise" (Exhibit L), and "is obstructive of good understanding with our neighbors" (Exhibit M); and by the testimony of a large number of Chinese merchants and of other well qualified persons to the effect that sufficient bookkeepers are not available, that it would not be possible for many Chinese merchants, especially the smaller ones, to comply with the law, and that if the Chinese merchants were compelled to keep their books in any language other than the Chinese language, it would bring serious embarrassment to the great majority and might even drive many of them out of business. Mr. Dee C. Chuan, the President of the China Banking Corporation and of the Chinese Chamber of Commerce, and Honorable Chow Kwo Hsien, Chinese Consul General for the Philippine Islands, testified that they, in collaboration with Chinese merchants, had conducted an investigation from which they made the following estimate of the distribution of sales among the Chinese:
Of the wholesale merchants, 50 had average amount of sales of over P1,000,000; 150, over P500,000; 400, over P100,000, and 2,735, over P40,000. Of the 8,445 retail merchants, the average amount of sales was P5,446.40. Basing their calculations on the above, it was found that the annual net income of the 8,445 Chinese retail merchants would not exceed P500 each, and of 2,000 of the 3,335 wholesale merchants, not to exceed P1,000. (Exhibit G.) The same investigation disclosed that not to exceed 12 Chinese firms are actually keeping their books in a language other than Chinese. The Chinese Consul General further testified that from his inquiries, he had found that the great majority of the Chinese merchants are utterly unable to comply with Act No. 2972. Mr. William T. Nolting, President of the Bank of the Philippine Islands and formerly Collector of Internal Revenue, testified to the following salient facts: 1. Not over one per cent of the Chinese merchants are qualified to transact their business in English, Spanish, or a native dialect; 2. It would be impossible to obtain accounts to assist them in keeping their books in English, Spanish, or a local dialect, although this deficiency might be overcome in the future; 3. If the merchant is unable to understand his accounts and cannot impose extreme confidence; in his bookkeeper, he is in a precarious position at all times; 4. An attempt to enforce Act No. 2972 would not facilitate the collection of taxes from the Chinese merchants but on the other hand might prov e prejudicial both to the interests of the Government and of the Chinese; 5. When he was in charge of the Bureau of Internal Revenue, he never experienced any difficulty in finding and employing a sufficient number of competent and honest Chinese accountants to make the necessary inspection of the books of Chinese merchants; 6. The honesty of the Chinese merchants in making the declarations of their sales compares favorably with other nationalities in that respect; and 7. To permit the Chinese merchants to keep two sets of books, one in Chinese and the other in English, Spanish, or some local dialect, would be a most dangerous practice because entries might be made in one set that would not be made in the other. The reply of the fiscal is to the effect that the oppressiveness of the law has been considerably exaggerated, that it applies as well to Japanese and other foreign merchants who do not complain, that only a relatively small per cent of the Chinese merchants seek to obstruct the enforcement of the law, that bookkeepers are available if the Chinese wish to employ them, and that the new law will facilitate governmental inspection of merchants' books. Numerous witnesses have been called and numerous documents have been offered to substantiate the stand taken by the Government. We will here notice only an indorsement by Wenceslao Trinidad, former Collector of Internal Revenue, and the testimony of Juan Posadas, the present Collector of Internal Revenue. Former Collector Trinidad, in a communication addressed to the Secre tary to the Governor-General on September 22, 1921, said: During the year 1920, internal revenue tax receipts were issued to 95,363 merchants and manufacturers, 183 printers and publishers, 10,424 common carriers, 10,967 contractors and warehousemen, 58,942 peddlers of merchandise and 1,001 brokers. All of the above-mentioned persons are required to pay percentage taxes on their gross sales or receipts. On account of the nature of this tax, these persons are required to keep books of accounts wherein they can enter the amounts of business done by them. This Bureau has no statistics to show the number of Chinese engaged in different businesses subject to percentage taxes but it is safe to say that they represent fully sixty per cent of the numbers stated above. All of these Chinese merchants keep their accounts in Chinese, with the exception of a very few large business houses which keep two sets of books of accounts, one in Chinese and the other in Spanish. There are also other businessmen who do not keep their books of accounts either in English or Spanish. These are Germans, Japanese, Syrians and Hindus. Their number cannot be ascertained due to the l ack of statistics bu t there are many of them in the Islands, especially the Japanese. The Bureau of Internal Revenue had up to this time employed 17 Chinese accountants, two Hindus and one Japanese. All of these accountants have been separated from the service with the exception of four Chinese accountants who are at present still employed in the Bureau. Out of the seventeen Chinese accountants employed, five were discharge for graft, seven resigned or were forced to resign for their unsatisfactory services rendered or for suspicion of graft, and one deceased. In spite of this number of accountants employed, only very little number of Chinese books have been investigated and audited, and in the majority of them under-declarations of sales or receipts have been found. There are also a number of Chinese who are not subject to percentage taxes, but who have books of a ccounts that need to be audited for income-tax purposes. It can be seen from the foregoing statements that the law requiring merchants to keep their books in English, Spanish or any of the local dialects, is necessary in order to protect the revenues of the Government. Collector Juan Posadas, in reply to question, and corroborated by other witnesses, made among others the following interestin g statements: Mr. FELIX. If the books of account, not only of the Chinese merchants but of the other foreign merchants, were kept in their own languages and not in English, Spanish, or some local dialect, would it be possible to have the books of accounts of these merchants audited by the agents or employees of the Bureau of Internal Revenue? ... — Mr. POSADAS. It would be impossible, unless our office had a personnel sufficiently numerous and competent to make the audits of the books of account in the different languages in which they were kept. Mr. FELIX. Has the Bureau of Internal Revenue that sufficient and competent personnel to audit the books of account of merchants who do not keep their books in Spanish, English, or some local dialect? — Mr. POSADAS. No, sir, we have only an insignificant number of Chinese accountants to make examinations of the books of the Chinese merchants. x x x xxx xxx Mr. FELIX. If the Bureau of Internal Revenue were not able — as according to you it is not able — to examine properly the books of accounts of merchants who do not keep their books in English, Spanish, or some local dialect, may the case arise wherein those merchants who do not keep their books in the languages permitted by Act No. 2972 would fail to pay the full amount of taxes due to the internal revenue, even though they were acting in good faith? ... — Mr. POSADAS. Yes, sir, because judging from the audits even of those books of accounts which are intelligible to the office personnel, the office has found many differences, or items not declared for the purpose of taxation. x x x xxx xxx Mr. FELIX. Do you know how many returns of merchants were examined in 1922 by the Chinese accountants of the income tax division of your Bureau? ... — Mr. POSADAS. During that year, the Chinese accountants in the income tax division inspected 477 returns of Chinese. x x x xxx xxx Mr. FELIX. Do you know whether there were any undeclarations in those cases, that were inspected that you have referred to? ... — Mr. POSADAS. In the comparison of these returns with the books of account of the interested parties, differences were found which amount to more than P600,000 which was not declared. x x x xxx xxx Mr. GIBBS. And, therefore, assuming that it would be possible to employ a sufficient number of competent Chinese inspectors of books of account, there would be no advantage in the enforcement of Act No. 2972 except in so far as it might aid the directors of the Bureau and the chiefs of division in making the inspections incident to deciding disputes between the inspectors and the merchants that you have mentioned? Mr. POSADAS. The advantage of the Accounting Law, which compels merchants to keep their books in English, Spanish, or some local dialect, lies precisely in the fact that it would facilitate the inspection of these books
of account by the employees of the Bureau of Internal Revenue, and enable them to check up the taxes which have been paid the merchants and ascertain whether or not they agree with the transactions actually had. This work is at present being done so far as concerns the merchants who keep their books in languages comprehensible to the Bureau, and to a certain extent it means that these merchants are penalized. On the other hand, it has been almost impossible to do this with regard to those merchants who keep their books entirely in languages not comprehensible to the office, and the net result therefore is that w hile we can collect differences in taxes due from part of the merchants, it is almost impossible to do so with regard to the other part. x x x xxx xxx Mr. GIBBS. But supposing that you had also Chinese accountants competent to act as supervising agents in the provinces, then what advantage would there be in enforcing Act No. 2972? — Mr. POSADAS. The advantage would consist precisely in the fact that we would avoid the duplication of personnel, because otherwise we would have to duplicate the personnel in each district by employing Filipinos and Chinese. Mr. GIBBS. Could you not easily put in a Chinese district inspector and a Filipino district inspector, leaving it to the Chinese district inspector to inspect the books of the Chinese and to the Filipino district inspector the books of the Filipinos and others? — Mr. POSADAS. It is physically impossible to employ Chinese supervisors, in view of the fact that up to this time I have never known of a Chinese who has qualified himself in the civil service to occupy the position. x x x xxx xxx Mr. GIBBS. Is it not true, Mr. POSADAS, that the practice of inspecting the books of the account of the Chinese by means of Chinese accountants has been followed by the Bureau of Internal Revenue in the Philippines for the past twenty years or more? — Mr. POSADAS. To judge from the results of the inspections made by my Bureau during my incumbency therein, I am led to believe that the inspections which were formerly made were superficial, in view of the fact that the Bureau during these latter years, he discovered large differences which were never declared for the purposes of taxation. x x x xxx xxx Mr. GIBBS. Let's put the question in another form, Mr. Posadas: Is it not a fact that the only possible benefit which the Bureau of Internal Revenue would derive from the enforcement of Act No. 2972 would be in so far as it might assist the Bureau in checking up the information required by its regulations? — Mr. POSADAS. Yes, sir, and to determine whether any items subject to taxation had been omitted. Mr. GIBBS. Another question, Mr. Posadas: Don't you think that by means of Chinese accountants, much more satisfactory kept in Chinese than from books kept abominably in English or Spanish? — Mr. POSADAS. Even though the books which are kept in a language other than Chinese were abominably kept, as long as they contain the entries of all the transactions are carried out by a merchant or by a person subject to taxation, it would always be better than a book which is incomprehensible to the administrators of the Bureau. Some slight consideration of the language question in general and of the language question in the Philippines in particular, will assist us in determining if the effect of enforcing Act No. 2972 will cause as much hardship and will be so oppressive on one particular nationality as to nullify the law, or whether the judiciary can constitutionally enforce the law. Language is the medium by which thoughts are conveyed from one person to another. The law before us recognizes as permissible mediums for business and taxation purposes, English — the language of the people of the British Empire and the Republic of the United States; Spanish — the language of the people of Spain; and local dialects — the language of the home in the Philippines. Of these native dialects, as disclosed in a statement prepared by Dr. T.H. Pardo de Tavera, Director of the Philippine Library and Museum, there are a grand total of eighty-seven, six with extensive li terature, and the others with little or no literature. (Exhibit F.) The law fails to take cognizance of the Chinese language, one of the oldest and one of the most extensively used languages in the world. The Philippine Organic Act of Congress of August 29, 1916, recognizes for electoral purposes, "Spanish, English, or a native language." (Sec. 15.) It enumerates as a qualification for an elective member of the Senate and the House of the Philippine Legislature, ability "to read and write either the English or Spanish language." (Sec. 13, 14.) The Municipal Law requires as a qualification for an elective municipal officer, ability to read and write intelligently either Spanish, English, or the local dialect. (Administrative Code, sec. 2174.) The official language of the courts and their records is at present either English or Spanish, although in practice, Spanish is used more extensively in the lower courts, and English in the appellate court. (Code of Civil Procedure, sec. 12, as amended by Act No. 2830. ) The official language of the legislative branch of the Government is either English or Spanish, although in practice Spanish is more extensively used, while exactly the reverse is true of the executive branch of the Government. In compliance with the President's Instructions to the Commission of April 7, 1900, full opportunity has been given to all the people of the Island to acquire the use of the English language, with the result that English is made the basis of public and private school instruction. (Administrative Code, sec. 922.) In the customs service, the law provides that the cargo manifest and each copy thereof shall be accompanied by a translation into English, if originally written in a language other than English. (Administrative Code, sec. 1226.) The above brief description of the language situation at least discloses some of the difficulties which have beset the attempt to hasten the adoption of a common language in the Philippines. Yet it is evident, that the Filipino people have cheerfully imposed upon themselves the burden of acquiring one more languages other than their native languages and have now, through their elective representatives, sought to require conformity with governmental policy by a large class of foreign residents. In the United States during the months immediately following the conclusion of the World War, a number of States passed statutes in substantially the same form forbidding the teaching of any modern language except English, to children below the eight grade in any school. The United States Supreme Court held the statutes unconstitutional on account of having no reasonable relation to some purpose within the competency of the State to effect, and on account of violating the constitutional guarantee of liberty in the Federal Constitution. "The protection of the Constitution extends to all," it was said, — "to those who speak other languages as well as to those born with English on the tongue." (Meyer vs. Nebraska, Bartels vs. Iowa, Pohl vs. Ohio, Nebraska District of Evangelical Lutheran Synod vs. Mckelvie [1923], 262 U.S., 390, 404; XII Michigan Law Review, Jan., 1924, p. 248.) In other countries, however, notably in the Republics in the Americas, which have had their institutional law greatly influen ced by the United States Constitution, laws are on the statute books which permit only Spanish to be used in commercial transactions. This is the system found in Bolivia, Chile, Colombia, Ecuador, Guatemala, Honduras, Mexico, Salvador, Uruguay, and Venezuela. (Commercial Laws of the World, vols. 1, 2 3, 4, 5, 6, 10, and 20; Manzano, Bonilla y Miñana, Codigos de Comercio, Tomos II y III; Wheless, Compendium of the Laws of Mexico, vol. I; Exhibit 12.) The purpose of the Legislature in enacting Act No. 2972 is disclosed by the decision of this court in Young vs. Rafferty, supra, by the messages of the Governor-General, by the hearings before the committees of the Philippine Legislature, and by other sources. All these indicate that the Act is a fiscal measure intended to facilitate the work of the government agents and to prevent fraud in the returns of merchants, in conformity with the sales tax and the income tax. For instance, in the decision in Young vs. Rafferty, supra, it was stated: "... It need hardly be said that the record which merchants are required to keep of their daily sales under the provisions of the circular letter of the Collector set out in the complaint is simplicity itself, and that it will, if honestly and faithfully kept, enable the Government to collect the percentage tax exactly due it. ..."
Conceded that the Chinese handle sixty per cent of the aggregate business of the Philippines, approximate equality in taxation demands that they pay something like the same proportion in taxes for the support of the State. In enacting Act No. 2972, the Philippine Legislature did so pursuant to the wide authority which is delegated to it by Organic law. The Organic Act, the Act of Congress of August 29, 1916, provides "That general legislative power, except as otherwise herein provided, is hereby granted the Philippine Legislature, authorized by this Act." (Sec. 8, 12.) The police power exists in the Philippine Islands in about the same form and to the same extent as in a State of the American Union. Under the general police power, persons and property in the Philippines have been subjected to various kinds of restrictions and burdens, in order to secure the general health, comfort, and prosperity of all. As indicated by a quotation of petitioners, the police power is not limited to regulations necessary for the preservation of good order or the public health and safety, but the prevention of fraud, cheating, and imposition is equally within its scope. The rule to follow in the application of the police power is that announced in the leading case of Lawton vs. Steele ( [1894], 152 U.S., 133), oft quoted with approval by our Supreme Court, namely: . . . Large discretion is necessarily vested in the legislature to determine, not only what the interests of the public requi re, but what measures are necessary for the protection of such interests. To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. . . . (See further, U.S. vs. Toribio [1910], 15 Phil., 85; Case vs. Board of Health and Heiser [1913], 24 Phil., 250; U.S. vs. Gomez Jesus [1915], 31 Phil., 218; Churchill and Tait vs. Rafferty [1915], 32 Phil., 580; and Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.) The power of taxation is, likewise, in the Philippines as in the United States, the strongest of all the powers of government, practically absolute and unlimited. The familiar maxim early announced by Mr. Chief Justice Marshall for the United States Supreme Court and since frequently invoked by the c ourts is that "the power to tax involves the power to destroy." (M'Culloch vs. Maryland [1819], 4 Wheat., 316.) It is a legislative power. All its inci dents are within the control of the legislature. It is the Legislature which must questions of state necessarily involved in ordering a tax, which must make all the necessary rules and regulations which are to be observed in order to produce the desired results, and which m ust decide upon the agencies by means of which collections shall be made. (1 Cooley on Taxation, pp. 7, 43, 46, 54; Cowles vs. Brittain [1822], 2 Hawks, 204; Genet vs. City of Brooklyn {1885], 99 N.Y., 296; Felsenheld vs. U. S. [1902], 186 U.S., Muñoz & Co. vs. Hord [1909], 12 Phil., 624.) It is equally manifest that the power to tax is not judicial power and that a strong case is required for the judiciary to declare a law relating to taxation invalid. If, of course, so great an abuse is manifest as to destroy natural and fundamental rights, it is the duty of the judiciary to hold such an Act unconstitutional. Nevertheless, certain of the limitations are such that they must address themselves exclusively to the legislative department, and be subject only to review by the people who elect the members of this department. To use the language of Judge Cooley: In order to bring taxation imposed by a state, or under its authority, within the scope of the provision of the fourteenth amendment which prohibits the deprivation of property without due process of law, the case should be so clearly and probably an illegal encroachment upon private rights as to leave no doubt that such taxation by its necessary operation is really spoliation under the power to tax. ... The inhibition of the amendment was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation ... In the construction of the revenue laws, special consideration is of course to be had of the purpose for which they are enacted. That purpose is to supply the government with revenue. But in the proceedings to obtain this it is also intended that no unnecessary injury shall be inflicted upon the individual taxed. While this is secondary to the main object — the impelling occasion of the law — it is none the less a sacred duty. Care is taken in constitutions to insert provisions to secure the citizen against injustice in taxation, and all legislative action is entitled to the presumption that this has been intended. . . . (1 Cooley on Taxation, pp. 55, 56, 75, 452.) The petitioners are Chinese subjects. The treaty rights accorded the Chinese are those of the most favored nation. Their constitutional rights are those accorded all aliens, which means that the life, liberty, or property of these persons cannot be taken without due process of law, and that they are entitled to the equal protection of the laws, without regard to their race. (Yick Wo vs. Hopkins [1885], 118 U.S., 356; Kwong Sing vs. City of Manila, supra.) Our Code of Commerce and our Corporation Law permit foreigners, and companies created in a foreign country, to engage in commerce in the Philippine Islands. (Code of Commerce, art. 15; Act No. 1459, sec. 73.) The rights of these Chinese aliens are not less than the rights of American and Philippine citizens. Nor more. Six decisions bearing particularly on the rights of the Chinese, three coming from the United States Supreme Court, two from the Supreme Court of the Philippine Islands, and one from the Supreme Court of Hawaii have at least persuasive application to the instant proceedings. Two of the decisions of the United States Supreme Court that we have in mind, Barbier vs. Connolly ( [1884], 113 U.S., 27) and Yick Wo vs. Hopkins ( [1885], 118 U.S., 356), are so well known as merely require citation, while a recent series of cases on the language question have already been mentioned. We only stop to quote one significant sentence taken from Mr. Justice Field's opinion, pertaining to the Fourteenth Amendment to the United States Constitution, in the first cited case, namely: . . .Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the Amendment. The case of Young vs. Rafferty, supra, of Philippine origin we have heretofore noticed. But later in point of time, a question was raised in the Philippine courts relative to the power of the Municipal Board of the City of Manila to enact Ordinance No. 532, requiring receipts in duplicate in English and Spanish duly signed, showing the kind and number of articles delivered b y laundries and dyeing and cleaning establishments. (Kwong Sing vs. City of Manila, supra.) It was held that as said ordinance was neither oppressive, nor unequal, nor unjust, it was valid. It was said: The purpose of the municipal authorities in adopting the ordinance is fairly evident. Ordinance No. 532 was enacted, it is said, to avoid disputes between laundrymen and their patrons and to protect customers of laundries who are not able to decipher Chinese characters from being defrauded. The object of the ordinance was, accordingly, the promotion of peace and good order and the prevention of fraud, deceit, cheating, and imposition. The convenience of the public would also presumably be served in a community where there is a Babel of tongues by having receipts made out in the two offi cial languages. Reasonable restraints of a lawful business for such purposes are permissible under the police power. The legislative body is the best judge of whether or not the means adopted are adequate to accomplish the ends in view. x x x xxx xxx Our view, after most thoughtful consideration, is, that the ordinance invades no fundamental right, and impairs no personal privilege. Under the guise of police regulation, an attempt is not made to violate personal or property rights. The ordinance is neither discriminatory nor unreasonable in its operation. It applies to all public laundries without distinction, whether they belong to Americans, Filipinos, Chinese, or any other nationality. All, without exception, and each and everyone of them without distinction, must comply with the ordinance. There is no privilege, no discrimination, no distinction. Equally and uniformly the ordinance applies to all engaged in the laundry business, and, as nearly as may be, the same burdens are cast upon them.
x x x xxx xxx There is no analogy between the instant case and the former one of Young vs. Rafferty ( [1916], 33 Phil., 556). The holding there was that the Internal Revenue Law did not empower the Collector of Internal Revenue to designate the language in which the entries in books shall be made by merchants subject to the percentage tax. ... There, the action was taken by means of administrative regulation; here, by legislative enactment. There, authority was rested on specific delegated powers; here, on both specific power and the all-pervading police power. There, governmental convenience was the aim; here, the public welfare. We are convinced that the same justices who participated in the decision in Young vs. Rafferty (supra) would now agree with the conclusion toward which we are tending. The case most directly in line with the facts before us, is that of the King vs. Lau Kiu ( [1888], 7 Hawaii, 489), decided by the Supreme Court of the Hawaii Islands during the period of the monarchial regime in those Islands. An Act of the Hawaii Legislature prescribed, that no wholesale or retail license should be granted to any person except upon the express condition that the licensee shall at all times keep full, true, and correct books of account of all business transacted by him in connection with such license, in the English, Hawaii, or some European language. It was contended among other things that this was legislation against one certain class of subjects in the Kingdom, to wit, against such subjects (and particularly the Chinese) as do not speak or write the Hawaiian, English, or any European language, and was not applicable to all citizens alike. It was held by the Supreme Court that this Act was contrary to articles 1 and 14 of the Constitution, which secure to all persons the enjoyment of life and liberty and the right of acquiring, possessing, and protecting property according to law. It was held, further, that the Act could not be sustained as an exercise of the police power of the state, as it had no relation to the health, comfort, safety, or welfare of the public. The presumption is always in favor of constitutionality. As the United States Supreme Court in a case of Philippine origin said: "... The function of the legislature is primary, its exercise fortified by presumption of right and legality, and is not to be interfered with lightly, nor by any judicial conception of its wisdom or propriety. ..." (Weems vs. United States [1910], 217 U.S., 349.) This presumption is especially strong in the case of statutes enacted to promote a public purpose, such as statutes relating to taxation. To doubt is to sustain. Only the other day, the United States Supreme Court, speaking through Mr. Justice Sutherland, said: The judicial duty of passing upon the constitutionality of an act of Congress is one of great gravity and deli cacy. The statute here in question has successfully borne the scrutiny of the legislative branch of the government, which, by enacting it, has affirmed i ts validity; and that determination must be given great weight. This court, by an unbroken line of decisions from Chief Justice Marshall to the present day, has steadily adhered to the rule that every possible presumption is in favor of the validity of an act of Congress until overcome beyond rational doubt. But if, by clear and indubitable demonstration, a statute be opposed to the Constitution, we have no choice but to say so. . . . (Adkins vs. Children's Hospital of the District of Columbia [1923], 261 U.S., 525; 67 Law. ed., 785.) That the Supreme Court of the Philippine Islands has consistently followed these rules is disclosed by the few laws held invalid. During the twenty-three years of the Supreme Court's exi stence, it has never held invalid one complete law, while portions of law have been nullified on but few occasions. (Casanovas vs. Hord [1907], 8 Phil., 125; Omo vs. Insular Government [1908], 11 Phil., 67; Weigall vs. Morgan Shuster [1908], 11 Phil., 340; Barrameda vs. Moir [1913], 25 Phil., 44; McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563; Central Capiz vs. Ramirez [1920], 40 Phil., 883; Concepcion vs. Paredes [1921], 42 Phil., 599; McDaniel vs. Apacible and Cuisia [1922], 44 Phil., 248.) It may be said to be an elementary, a fundamental, and a universal rule of construction, applied when considering constitutional questions, that when a law is susceptible of two constructions one of which will maintain and the other destroy it, the courts will always adopt the former. Whenever a law can be so construed as to uphold it, it will be so construed although the construction which is adopted does not appear to be as natural as another construction. But where the meaning of the Act is plain, words cannot be read into it or out of it in order to save the law. (1 Lewis' Sutherland Statutory Construction, pp. 135, 136; Cooley's Constitutional Limitations, 184; 6 R.C.L., 78.) In the early case of United States vs. Coombs ( [1838], 12 Peters, 72), Mr. Justice Story, speaking for the United States Supreme Court, said: Before we proceed to the direct consideration of the true import and interpretation of this section, it seems highly important, if not indispensable, to say a few words as to the constitutional authority of Congress to pass the same. For it, upon a just interpretation of the terms thereof, Congress have exceeded their constitutional authority, it will become our duty to say so , and to certify our opinion on this points submitted to us in favor of the defendant. On the other hand, if the section admits of two interpretations, each of which is within the constitutional authority of Congress, that ought to be adopted which best conforms to the terms and the objects manifested in the enactment, and the mischiefs which it was i ntended to remedy. And again, if the section admits of two interpretations, one of which brings it within, and the other presses it beyond the constitutional auth ority of Congress, it will become our duty to adopt the former construction; because a presumption never ought to be indulged that Congress meant to exercise or usurp any constitutional authority, unless that conclusion is forced upon the court by language altogether unambiguous. . . . In the later case of Board of Supervisors of Grenada County vs. Brown ( [1884], 112 U.S., 261), Mr. Justice Harlan, speaking for the United States Supreme Court, said: It certainly cannot be said that a different construction is required by the obvious import of the words of the statute. But i f there were room for two constructions, both equally obvious and reasonable, the court must, in deference to the Legislature of the State, assume that it did not overlook the provisions of the Constitution and designed the Act of 1871 to take effect. Our duty, therefore, is to adopt that construction which, without doing violence to the fair meaning of the words used, brings the statute into harmony with the provisions of the Constitution, Cooley Constitutional Law, 184-5; Newland vs. Marsh, 19 Ill., 384; People vs. Supervisors, 17 N.Y., 241; Colwell vs. Water Power Co., 4 C.E. Green (19 N.J. Eq.), 249. And such is the rule recognized by the Supreme Court of Mississippi in Marshall vs. Grimes, 41 Miss., 31, in which it was said: "General words in the Act should not be so construed as to give an effect to it beyond the legislative power, and thereby render the Act unconstitutional. But, if possible, a construction should be given to it that will render it free from constitutional objection; and the presumption must be that the Legislature intended to grant such rights as are legitimately within its power." Again, in Sykes vs. Mayor, 55 Mississippi, 143: "It ought never to be assumed that the lawmaking department of the government intended to usurp or assume power prohibited to it. And such construction, if the words will admit of it, ought to be put on its legislation as will make it consistent with the supreme law." Identical canons of statutory construction have often been invoked in the Philippines to enable the courts to avoid declaring a law unconstitutional. For instance, the decision in the well known case of In re Guariña ( [1913], 24 Phil., 37, 46), citing Black on Interpretation of Laws, pp. 87, 93, and 94, is authority for this statement of the rule: "It is the duty of the courts in construing a statute enacted by the Philippine Commission (Legislature), not to give it a c onstruction which would be repugnant to an Act of Congress, if the language of the statute is fairly susceptible of another construction not in conflict with the higher law; and in doing so, contentions touching the apparent intention of the legislator will be disregarded which would lead to the conclusion that the Commission intended to enact a law in violation of an Act of Congress." Not long since, this court, in the c ase of Fuentes
vs. Director of Prisons, No. 22449,1 saved Act No. 3104 relating to the death penalty, from a fate similar to its subject by refusing to give a literal meaning to the phraseology of the law. We have been enveigled into a much more elaborate discussion of this case than is at all essential, for two reasons: Firstly, because of the earnestness of counsel who have impressed on the court with marked ability the merits of their respective cases and the dangers which lurk in a contrary holding; and secondly, because of the effectiveness of the background as indicative of executive purpose and legislative intent. Speaking frankly, however, a majority of the court has all the time had a well defined opinion which we will now state. We come to the last question suggested, a construction of Act No. 2972 which allows the cour t legally to approve it. A literal application of the law would make it unlawful for any Chinese merchant to keep his account books in any language other than English, Spanish, or a local dialect. The petitioners say the law is susceptible of that interpretation. But such interpretation might, and probably would, cause us to hold the law unconstitutional. A second interpretation is that the Chinese merchant, while permitted to keep his books of account in Chinese, must also keep another set of books in either English, Spanish, or a native dialect. The respondents claim the law is susceptible of such construction. It occurs to us, however, that this construction might prove as unsatisfactory as the first. Fraud is possible in any language. An approximation to governmental convenience and an approximation to e quality in taxation is the most which may be expected. A third construction which is permissible in view of the history of the legislation and the wording of the statute, is, that the law only intended to require the keeping of such books as were necessary in order to facilitate governmental inspection for tax purposes. It has not escaped our notice that the law does not specify what books shall be kept. It is stated by competent witnesses that a cash book, a journal, and a ledger are indispensable books of account for an efficient system of accounting, and that, in the smaller shops, even simpler entries showing merely the daily record of sales and record of purchases of merchandise would be sufficient. The keeping of records of sales and possibly further records of purchases, in English Spanish, or native dialect, and the filling out of the necessary forms would serve the purpose of the Government while not being oppressive. Actually, notations in English, Spanish, or a dialect of all sales in sales books, and of data in other specified forms are insisted upon by the Bureau of Internal Revenue, although as appears from Exhibit 2, it is doubtful is all Chinese merchants have complied with these regulations. The faithful observance of such rules by the Chinese is not far removed from the offer of cooperation oft made for them by the petitioners or the "translation of the account books" oft mentioned and explained by the respondents. The law, in speaking of any person, company, partnership, or corporation, makes use of the expression "its account books." Does the phrase "its account books" mean that all the account books of the person, company, partnership, or corporation must be kept exclusively in English, Spanish, or any local dialect? The petitioners argue that the law has this meaning. Or does the phrase "its account books" mean that the persons, company, partnership, or corporation shall keep duplicate sets of account books, one set in Chinese and the other a translation into English, Spanish, or any local dialect? Counsel for the respondents urge this construction of the law upon the court. Or does the phrase "its account books" mean that the person, company, partnership, or corporation must keep such account books as are necessary for taxation purposes? This latter interpretation occurs to us as a reasonable one and as best safeguarding the rights of the accused. And lastly, what effect has Act No. 2972 had upon the provisions of the Code of Commerce on the subject of merchants? Has the Act repealed or modifi ed any article of the Code of Commerce? The interrogatories above made at least lead to the deduction that the law i s more or less ambiguous and that it will bear tw o or more constructions. Let us repeat: Act No. 2972 is a fiscal measure. It should be so construed if possible as to effectuate legislative intent, as collected from the occasion for the law, the circumstance under which it was enacted, the mischief to be remedied, and the policy which dictated its passage. It should be so construed if possible as to avoid conflict with the constitution, although such construction may not be the most obvious or natural one. Giving, therefore, to the law a meaning which will carry out the main governmental purpose and which will permit us to sanction its constitutionality, it seeks to prohibit not only the Chinese but all merchants of whatever nationality from making entries in the books of account or forms subject to inspection for taxation purposes in any other language than either the English or Spanish language or a local dialect, although permitting all merchants to execute their commercial transactions or operations in any language or dialect they may prefer, and although permitting them to keep such other books of account as their personal convenience may dictate and in a language which will come most easily to them. We would go so far as to hold that circular No. 467 of the Bureau of Internal Revenue which this court once held beyond the power of the Collector of Internal Revenue to promulgate, and any other reasonable regulation of a similar nature, as within the power of the Philippine Legislature to sanction and entirely enforceable. To any possible plaint by the Government, that this is tantamount to "judicial legislation," we would say: It is not "judicial legislation" as this phrase is commonly used in the spirit of antagonistic fault finding. No words are written into the law. No words are taken out of the law. It is merely a practical judicial construction of a law where the validity of this law is in issue, which gives to the law a meaning accomplishing everything needed by the Government for tax purposes, without being unduly oppressive on the individual, and which permits the courts to uphold the law. To the petitioners, who by our decision do not obtain all they may wish, we append this word of advice: Under such a construction as is above indicated, the Chinese will not be singled out as a special subject for discriminating and hostile legislation. There will be no arbitrary deprivation of liberty or arbitrary spoliation of property. There will be no unjust and illegal discrimination between persons in similar circumstances. The law will prove oppressive to the extent that all tax laws are oppressive, but not oppressive to the extent of confiscation. The means to accomplish a necessary interference with private business are no more oppressive upon individuals than is necessary to maintain the State. The law is not intended for the convenience of the trader or the protection of the creditors, but has relation to the public welfare, to the power of taxation, to the right of the government to exist. The Chinese must bear their just proportion of the tax burden, however unwelcome it may be, without flinching. A faint effort has been made by the petitioners to have the court declare Act No. 2972 void because the subject thereof is not expressed in its title. But legislation should not be embarrassed by such strict construction as is urged by counsel. No distinguishable variance between the title of the law and the body of the law can be discovered after microscopic examination. The law is brief in its terms, and neither the Legislature nor the public need be misled by the title. (Government of the Philippine Islands vs. Municipality of Binalonan and Roman Catholic Bishop of Nueva Segovia [1915], 32 Phil., 634.) We construe Act No. 2972 as meaning that any person, company, partnership, or corporation, engaged in commerce, industry, or any other activity for the purpose of profit in the Philippine Islands, shall keep its account books, consisting of sales books and other records and returns required for taxation purposes by regulations of the Bureau of Internal Revenue, in effect when this action was begun, in English, Spanish, or a local dialect. Agreeable to such construction, we hold Act No. 2972 valid and constitutional. The temporary injunction heretofore issued is dissolved although under the construction given to the law i t may well be doubted if the Government will care to proceed with the criminal prosecution. If the Government should not dismiss the information, this question may be raised by demurrer in the lower court. Petition denied without costs.
Avanceña, Villamor, Ostrand, Johnson, Acting Chief Justice, took no part.
and
Romualdez,
JJ.,
concur.
Separate Opinions STREET, J., dissenting: The Act which has been assailed in this case looks innocent enough on its face but when examined in connection with conditions among those for whom it was prescribed, compliance is found to be impossible, or supposing that the Act could be complied with, the loss resulting to thousands of Chinese merchants would be so disproportionate to any possible good to be attained, that the enforcement of the law would amount to a denial of liberty and equal protection of the law to the persons adversely affected. It is unnecessary for me to enlarge upon the destructive effects of the law as a ground for declaring it invalid, for it is admitted in the majority opinion that if Act No. 2972 is taken to mean what it says, it must be considered a dead letter. But after admitting this much, the court, in its extreme reluctance to declare the entire statute void, addresses itself to the problem of limiting its effect by what I consider to be an illegitimate process of judicial amendment under the guise of interpretation. The first section of the Act, as thus amended by the Supreme Court, reads as follows: It shall be unlawful for any person, company, partnership or corporation engaged in commerce, industry or any other activity for the purpose of profit in the Philippine Islands, in accordance with existing law, to keep its account books, (consisting of sales books and other records and returns required for taxation purposes by regulations of the Bureau of Internal Revenue, in effect when this action was begun) in any language other than English, Spanish or any local dialect. The new matter which I have here inserted in parenthesis is taken verbatim from the dispositive part of the decision and defines precisely the extent to which the court has decided to allow the Act to operate. Where are the rules of interpretation by which this matter can be deduced from the language of the Act? The opinion of the court supplies no answer. Of course if the Legislature had confined the Act to giving the Collector of Internal Revenue a power to prescribe forms and require data convenient for the assessment of taxes, the law would not have been subject to criticism; but how can an intention to legislate in this form be deduced from the proposition, so entirely distinct, contained in the Act, that it shall be unlawful for a merchant to keep his account books in other languages than those mentioned? That the court is here exercising the mere role of a legislator is very obvious, for who can say that the Philippine Legislature, conscious of the ineffectiveness of the law as written, would have willed that the power granted to the Collector should take the precise form and extent now allowed by the court? In assuming the functions of a legislature we are entering upon a sea that has not been charted for the guidance of courts, and if this decision should prove fruitful as a precedent we shall find ourselves free in the future to wander pretty much at will through legislative Acts. The precise rule applicable to this case is stated in Meyer vs. Nebraska (262 U.S., 390; 67 Law. ed., 1042), where the Supreme Court of the United States, speaking through Mr. Justice McReynolds, declared that the liberty secured by the constitutional provision under discussion may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. The decision of the Supreme Court of Hawaii in King vs. Lau Kiu (7 Hawaiian Rep., 489), declaring invalid a statute almost exactly like that involved in this action is also suggestive, as reflecting judicial sense in a community containing a large element of Chinese population. It is my opinion that Act No. 2972 of the Philippine Legislature is wholly void, and the injunction should have been made perpetual. In addition to smashing the law the court should have removed the debris. JOHNS, J., dissenting: With all due respect to the well written, exhaustive majority opinion, the only question involved is the meaning and construction which should be placed upon Act No. 2972, which is entitled "An Act to provide in what language account books shall be kept, and to establish penalties for its violation." SECTION 1. It shall be unlawful for any person, company, partnership or corporation engaged in commerce, industry or any other activity for the purpose of profit in the Philippine Islands, in accordance with existing law, to keep its account books in any language other than English, Spanish or any local dialect. SEC. 2. Any person violating the provisions of this Act shall, upon conviction, be punished by a fine of not more than ten th ousand pesos, or by imprisonment for not more than two years or both. It will be noted that section 1 makes it unlawful for any of the persons specified "to keep its account books in any language other than English, Spanish or any local dialect." Section 2 provides that any person violating the provisions of section 1 shall be punished by a fine of not more than P10,000 or by imprisonment for not more than two years or both. In other words, you have a law prohibiting the doing of certain things and providing a punishment for its violation. Hence, the statute in question is a criminal law, and must be construed as such. Sutherland on Statutory Construction is recognized as standard authority all over the world, and portions of it are quoted with approval in the majority opinion. In his second edition, section 531, the author says: What statutes are penal. — Among penal laws which must be strictly construed, those most obviously included are all such acts as in terms impose a fine or corporal punishment under sentence in state prosecutions, or forfeitures to the state as a punitory consequence of violating laws made for preservation of the peace and good order of society. The majority opinion frankly says: A literal application of the law would make it unlawful for any Chinese merchant to keep his account books in any language other than English, Spanish, or local dialect. The petitioners say the law i s susceptible of that interpretation. But such inte rpretation might, and probably would, cause us to hold the law unconstitutional. In section 363, Sutherland on Statutory Construction, it is said. . . . If a statute is plain, certain and unambiguous, so that no doubt arises from its own terms as to its scope and meaning, a bare reading suffices; then interpretation is needless. SEC. 366. ... We are not at liberty to imagine an intent and bind the letter of the act to that intent; much less can we indulge in the license of striking out and inserting, and remodeling, with the view of making the letter express an intent which the statute in its native form does not evidence. Every construction, therefore, is vicious which requires great changes in the letter of the statute, and, of several constructions, that is to be preferred which introduces the most general and uniform remedy. . . . No mere omission, no mere failure to provide for contingencies, which it may seem wise to have specifically provided for, justify any judicial addition to the language of the statute. The legislature must be understood to mean what it has plainly expressed, and this excludes construction. The legislative intent being plainly expressed, so that the act read by itself, or in connection with other statutes pertaining to the same subject, is clear, certain and unambiguous, the courts have only the simple and obvious duty to enforce the law according to its terms. ... If a
legislative enactment violates no constitutional provision or principle, it must be deemed its own sufficient and conclusive evidence of the justice, propriety and policy of its passage. Courts have, then, no power to set it aside, or evade i ts operation by forced and unreasonable construction. If it has been passed improvidently, the responsibility is with the legislature and not with the courts. SEC. 520. Strict construction of penal statutes. — The penal law is intended to regulate the conduct of people of all grades of intelligence within the scope of responsibility. It is therefore essential to its justice and humanity that it be expressed in language which they can easily comprehend; that it be hold obligatory only in the sense in which all can and will understand it. And this consideration presses with increasing weight according to the severity of the penalty. Hence every provision affecting any element of a criminal offense involving life or liberty is subject to the strictest interpretation; and every provision intended for the benefit of the accused, for the same humane reason, receives the most favorable construction. The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislature, not in the judicial department. It is the legislature, not the court, which is to define a crime and ordain its punishment. ... The case must be a very strong one indeed which would justify a court in departing from the plain meaning of the words, especially in a penal act, in search of an intention which the words themselves did not suggest. . . . . . . "The established rule is," says the court in Ex parte Bailey, "that a penal law must be construed strictly, and according to its letter. Nothing is to be regarded as included within them that is not within their letter as well as their spirit; nothing that is not clearly and intelligibly described in the very words of the statute, as well as manifestly intended by the legislature. . . ." SEC. 521. A penal statute cannot be extended by implication or construction. It cannot be made to embrace cases not within the letter, though within the reason and policy, of the law. Applying such rules of construction to Act No. 2972, how, where or in what manner is the language of Act No. 2972 ambiguous, indefinite or uncertain? Every word of it is intelligent English. Where is there any doubt or uncertainty as to the meaning of any word in the act? As the majority opinion states, if the language used in the act means what it says, it must be construed as unconstitutional. For such reason, the majority opinion holds that the act should not be construed to mean what it says, but that it should be construed to mean what it is claimed the legislature intended it should mean. If the language in the act was indefinite, uncertain or ambiguous that position would be tenable. Numerous decisions are cited in the majority opinion, all of which are good law, but only two of them are in point upon the main question here involved, and both of them are squarely against the law as laid down in the majority opinion. In legal effect, that opinion holds that Act No. 2972, in its existing form, and as it was enacted by the Legislature, is unconstitutional and void. It then proceeds to reconstruct, change and modify the law, and then holds that the law, as reconstructed and modified is constitutional. No law is cited which authorizes this or any other court to reconstruct or modify the plain, simple language of a legislative act, for the simple reason that no such a law will ever be found. But, as Sutherland says, where, as in the instant case, the language is clear and explicit, it must be construed to mean what it says. On legal principle, the case of Meyer vs. Nebraska, decided by the Supreme Court of the United States at the October term, 1922 (67 Law ed., 1042), cited in the majority opinion, is square in point. The Legislature of Nebraska passed a law entitled "An Act Relating to the Teaching of Foreign Languages in the State of Nebraska," section 1 of which is as follows: No person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language other than the English language. SEC. 2. Languages, other than the English language, may be taught as languages only after a pupil shall have attained and successfully passed the eight grade as evidenced by a certificate of graduation issued by the country superintendent of the country in which the child resides. SEC. 3. Any person who violates any of the provisions of this Act shall be deemed guilty of a misdemeanor and upon con viction, shall be subject to a fine of not less than twenty-five ($25) dollars, nor more than one hundred ($100) dollars or be confined in the county jail for any period not exceeding thirty days for each offense. That court held the act unconstitutional and void under the Fourteenth Amendment. Notice the similarity of the legal questions involved. Also notice that section 2 of that Act provides that English language may be taught after the pupils have passed the eight grade. In the instant law, there is no exception whatever. That law was held void by the highest court of the land whose decisions this court should follow and respect. By comparison of the two laws, it shall be noted that there is much stronger reason for holding the law unconstitutional in the instant case than in the case of Meyer vs. Nebraska. It will also be noted that the Supreme Court of the United States squarely met and decided the constitutionality of the law. The Legislature of the Hawaiian Kingdom enacted a law sec tion 1 of which is as follows: "That from and after the first day of October next, no wholesale or retail license shall be granted to any person except upon the express condition that such licensee shall at all times keep full, true and correct books of account of all business transacted by him in connection with such licensed business, which books of account shall be kept in the English, Hawaiian or some European language." And the Supreme Court of Hawaii, in 7 Hawaiian Reports, 489, held that the law was unconstitutional and void. Compare the language used in the Nebraska Act and the Hawaiian Act with that of Act No. 2972. In each case, it is plain, clea r and simple, and there is no doubt as to what the legislature intended. In the Nebraska case, there was no attempt made by the Supreme Court of the United States to reconstruct, change or modify the law as it was enacted by the legislature. The same thing is true in the Hawaiian case. You will look in vain to find a decision of the Supreme Court of the United States where that court has ever reconstructed or modified the plain, clear, simple language of a legislative act, for the purpose of holding it constitutional. We frankly concede that, for taxation purposes, the legislature has the power to enact a law requiring that a record of all sales and purchases should be kept in a given language, and to specify and define how and in what manner such record should be kept, and that such a law would be valid. But we are not dealing with the question of what the legislature can do. The question involved here is what the legislature has done. Both in the title and the body of the act, the legislature has said that it shall be unlawful for a ny person, firm or corporation engaged in certain lines of business to keep i ts account books in any language other than English, Spanish or any local dialect, and has expressly imposed a penalty for a violation of the act. There are no exceptions or limitations in the language, and it is not confined or limited to any specific purpose. It is broad and general and applies to any and all account books which may be kept or used in connection with the business. The majority opinion holds that the law should be construed to read that account books, for taxation purposes only, shall be kept in either English, Spanish or any local dialect. With all due respect to the majority opinion, that is the very highest type of judicial legislation. If the act is to be so construed, then the law itself should specify and define what books are required to be kept for taxation purposes, and how they should be kept, or it should delegate that power to the tax officials. Assuming, as the majority opinion does, that Act No. 2972 should re ad that account books, for taxation purposes, should be ke pt in their English, Spanish or any local dialect, the act does not specify or define what books shall be kept or how and in what manner they shall be kept. Neither does it delegate that power to anyone else. In its effort in trying to get out of one hole and make a void law a valid law, the majority opinion runs into another hole, which is equally fatal to law. If, as it holds, Act No. 2972 should be construed to mean that account books, for taxation purposes only, should be kept in their English, Spanish or some local dialect, and the law does not specify what books shall be kept or how and in what manner they shall be kept and that
power is not delegated to anyone else, how can the law be enforced? Under such a construction, if a defendant should be charged with a violation of the law, what law has he violated, and upon what legal principle could a conviction be sustained? Upon that point, the law as drafted by the legislature is definite and certain. In legal effect, it provides that all account books for any and all purposes shall be kept in either English, Spanish or some local dialect. The law as reconstructed by the majority opinion would be that such account books are to be c onfined and limited to account books for taxation purposes. Yet, the law does not specify what books shall be kept for that purpose, or how or in what manner they shall be kept, or what the entries shall contain. Neither is that power delegated. In the absence of such provisions, how could anyone be convicted of a violation of the law? For what crime could he be charged and what would be his offense? Apparently, the majority opinion realizes the legal effect of its reconstruction of the law, for on page 36 (p. 420,supra), the opinion says: . . . it seeks to prohibit not only the Chinese but all merchants of whatever nationality from making entries in the books of account or forms subject to inspection for taxation purposes in any other language than either the English or Spanish language or a l ocal dialect, . . . . And on page 37 (p. 420, supra), it says: . . . We would go so far as to hold that circular No. 467 of the Bureau of Internal Revenue which this court once held beyond the power of the Collector of Internal Revenue to promulgate, and any other reasonable regulation of a similar nature, as within the power of the Philippine Legislature to sanction and entirely enforceable. But it will be noted that Act No. 2972 does not say anything about "entries in the books of account or forms subject to i nspection for taxation purposes." Neither does it say anything about "circular No. 467 or any other reasonable regulation of a similar nature." Neither is there any delegation of power to anyone. Hence, it must follow that until such time as the law is amended by the legislature covering those points, it cannot be enforced. The act in question is in no way connected with, and does not in any manner refer to, the "Code of Commerce." Act No. 2972 is entitled "An Act to provide in what language account books shall be kept, and to establish penalties for its violation," and section 1 provides that it shall be unlawful for certain persons "to keep its account books in any language other than English, Spanish or any local dialect." The act is complete within itself and is separate and distinct from, and makes no reference whatever to, any other act. The Code of Commerce is entitled "Merchants and Commerce in General," and deals with commercial bodies and commercial transactions. If, as the majority opinion holds, Act No. 2972 should read "account books for taxation purposes," then Act No. 2972 should be confined and limited to questions of taxation, which are entirely separate and distinct from "merchants and commerce in general." We have yet to learn that legally speaking, questions of commerce and commercial transactions are synonyms with questions of taxation. It is said that this court has never declared an act of the legislature unconstitutional. Assuming that to be true, it is no argument for or against the constitutionality of any law. On legal principle, Act No. 2972 was declared unconstitutional by the Supreme Court of the United States; an example which it would be well for this court to follow. However grave the responsibility may be, i f a given law is unconstitutional, under our oath of office, it is our duty to so declare it. We repeat that no law is cited in the majority opinion and that none will ever be found which holds the law in question to be constitutional. The majority opinion violates every rule above quoted of Sutherland on Statutory Construction. For such reasons, I vigorously dissent. Plaintiffs should have the writ prayed for in their petition
G.R. No. L-278 HAYDEE HERRAS TEEHANKEE, petitioner, vs. THE DIRECTOR OF PRISONS, and LEOPOLDO ROVIRA, POMPEYO DIAZ, ANTONIO QUIRINO and JOSE P. VELUZ, Judges of People's Court, respondents. Vicente J. Francisco for petitioner. Assistant Solicitor General Reyes and Solicitor Kapunan, Jr. for respondent Director of Prisons. Respondent Judges of People's Court in their own behalf. HILADO, J.:
On February 16, 1946, we approved a minute resolution ordering that "petitioner Haydee Herras Teehankee, upon her filing in this Court of a bond in the sum of fifty thousand pesos (P50,000) and upon said bond duly approved, be forthwith set at l iberty." This is now written to set forth at length the reason underlying such order. Petitioner was one of the persons detained by the Counter Intelligence Corps Detachment of the United S tates Army mentioned in the Court's decision in case ofRaquiza vs. Bradford (75 Phil., 50). As said in that decision, petitioner was apprehended by the said Counter intelligence Corps Detachment under Security Commitment Order No. 286 wherein she was specifically charged with (a) "active collaboration with the Japanese," and ( b) "previous association with the enemy." ( Ibid., p. 56.) When she, along with her co-detainees and co-petitioners in that case, was delivered by the United States Army to the Commonwealth Government pursuant to the proclamation of General of the Army Douglas MacArthur of December 29, 1944, she was detained by said Government under that charge. And under that charged. And under the same charge she has remained in custody of the Commonwealth Government during all the time herein referred to. Until the instant case was submitted for decision, no information had been filed against the petitioner under the People's Court Act and the correlative provisions of the penal laws. When petitioner submitted to the People's Court her petition dated October 2, 1945, seeking temporary release under bail, said court by its order dated October 4, 1945, signed by Judge Antonio Quirino, directed the Solicitor General, as head of the Office of Special Prosecutors, "to file his comment and recommendation, as soon as possible." In compliance with said order, the office of Special Prosecutors filed its recommendation dated October 5, 1945, wherein it was manifested "that on the strength of the evidence at hand, the reasonable bail recommended for the provincial release of the petitioner be fixed at fifty thousand pesos (50,000)." Presiding Judge Leopoldo Rovira of the People's Court, in view of said recommendation, entered an order dated October 9, 1945, referring the petition for reconsideration by the Fifth Division of the Court, but adding that in his opinion "it should be d enied notwithstanding the recommendation of the Solicitor General for her provisional release under a bond of fifty thousand pesos (50,000)." And on that same date Judge Pompeyo Diaz of the same court entered an order disposing of the petition, as well as the recommendation of the Solicitor General, in these words: . . . . in view of the gravity of the offense as can be deduced from the fact that the office of Special Prosecutors recommends as high as fifty thousands pesos (P50,000) for her provisional release, it is ordered that the said petition for provinsional re lease be, as it is hereby denied. A motion to reconsider this order was denied by Judge Diaz on October 13, 1945.
Petitioner filed with this court a petition for certiorari and mandamus (Herras Teehankee vs. Rovira, 75 Phil., 634), praying that the orders above mentioned be set aside, they having been entered with abuse of discretion and without hearing granted to petitioner. This court, on December 20, 1945, rendered a judgment the dispositive part of which provides and decr ees as follows: Wherefore, it is the judgment of this court that ( a) the order of the People's Court, dated October 9, 1945, denying petitioner's petition for provisional release under bail, and the order of said court, dated October 13, 1945, denying petitioner's motion for reconsideration of said order of October 9, 1945, which we declare to have been entered with grave abuse of discretion, be se t aside; and (b) that for the proper application of the pertinent constitutional, statutory, and reglementary provisions alluded to in the body of this decision, a hearing of petitioner's application for bail be held before the People's Court with due notice to the Solicitor General, as well as to the petitioner, as hereinabove outlined, said hearing, whether summary or otherwise, to be such as would enable the People's Court to exercise its sound discretion in the disposal of the aforesaid petition. Without costs. So ordered. Pursuant to this decision, the People's Court proceeded to hear the petition for provisional release under bail in the presence of the petitioner on December 27, 1945. At such hearing, notwithstanding the special prosecutor's statement that he had no objection to the petition, Judge antonio Quirino asked him questions tending to compel disclosure of the prosecution's evidence, to which petitioner objected upon the ground that, under the circumstances, the only thing for the court to d was to grant the petition. The court reserved its decision, but petitioner came to this court to raise the issue in the same case (Herras Teehankee vs. Rovira, supra) in a motion filed on January 2, 1946. This court, on January 11, 1946, resolved said motion as follows: Considering the motion of petitioner's counsel in G.R. No. L-101, Haydee Herras Teehankee, petitioner, vs. Leopoldo Rovira et al., respondents, filed on January 2, 1946, and the answer thereto filed by respondent Hon. Antonio Quirino, as Associate Judge of the People's Court, dated January 3, 1946; it appearing on page 16 of the transcript Annex D of said motion that at the hearing held before the People's Court on December 27, 1945, pursuant to the decision of this court, counsel for petitioner made a verbal petition asking the People's Court to issue an order for petitioner's release on bail in the amount of P50,000, said counsel announcing that should the People's Court deny his said petition, he will seek the corresponding extraordinary legal remedy before this court, and its appearing that the People's Court reserved its decision on the said oral petition, which is, therefore, still pending resolution, which fact makes petitioner's motion of January 2, 1946, premature; said motion is denied, but with instruction for the People's Court to render its decision on the aforesaid verbal petition, taking into account that when the Special Prosecutor in capital cases like the present, does not oppose the petition for release on bail, the court should, as a general rule, in the proper exercise of its discretion, grant the release after approval of the bail which it should fix for the purpose; but if the court has reason to believe that the Special Prosecutor's attitude is not justified, it may ask him questions to ascertain the strength of the state's evidence or to judge the adequacy of the amount of bail; when, however, the Special Prosecutor refuses to answer any particular question on the ground that the answer may involve a disclosure imperiling the success of the prosecution or jeopardizing the public interest, the court may not compel him to do so, if and when he exhibits a statement to that effect of the Solicitor General, who, as head of the office of Special Prosecutors, is vested with the direction and control of the prosecution, and may not, even at the trial, be ordered by the court to present evidence which he doe not want to introduce — provided, of course, that such refusal shall not prejudice the rights of the defendant or detainee. On the same date, January 11, 1946, at 4.05 p.m., the People's Court was served with a copy of the above-quoted resolution. Since its receipt of said copy until this case was submitted, said court has failed to decide petitioner's verbal application for release under bail presented on December 27, 1945, and which it was instructed to decide; but on the contrary, respondent Judge Antonio Quirino, for the second time, called said application for hearing on January 15, 1946, and insisted on addressing to the Special Prosecutor practically the same questions as those which he had addressed to him at the hearing of December 27, 1945, and upon said prosecutor's declining to answer with the presentation of a certificate, dated January 14, 1946, of the Solicitor General to the effect "that the office of Special Prosecutors is not, for the present, in a position to disclose the strength or nature of the evidence which it has at hand in the case of the herein petitioner as it would imperial the success of the prosecution and jeopardize public interest," ordered the arrest of said special prosecutor (Liwag) for alleged contempt of court, and the application for bail was left undecided. That detention of Private Prosecutor Liwag gave rise to the habeas corpus proceedings instituted in his behalf in case G.R. No. L-237 (42 Off. Gaz., 934), on January 15, 1946, which resulted in the release of said official pursuant to an order, of the same date, by Hon. Gregorio Perfecto, Associate Justice of this Court. The order issued by Justice Perfecto was predicated upon"the instructions contained in our resolution of January 11, 1946, above quoted, to the effect that even where the People's Court believes that the special prosecutor's attitude in not opposing the petitioner for provisional release under bail is not justified, if the Solicitor General filed a statement under his official oath to the effect that the disclosure of the evidence in the hands of the prosecutor may imperial the success of the prosecution and jeopardize public interest, the authority of the People's Court to inquire into the prosecution's evidence ceases and, therefore, the prosecutor cannot be held guilty of contempt for refusing to answer the questions of the court. Respondent Judge Antonio Quirino filed before this Court on January 17, 1946, a motion to reconsider the order issued by Justice Perfecto which in truth was a motion to reconsider our instructions aforementioned, and this court by unanimous vote denied the motion. Based upon what had erroneously been done by the People's Court at this second hearing , petitioner filed a verified motion in said case G.R. No. L-1011 dated January 16; 1946, asking this Court to grant her directly provisional release under bail. We denied the motion with the qualification that "there having been unnecessary delay in the disposition by respondents of the petition for provisional release under bail, said respondents are hereby directed to act on and dispose of said petition without any further delay." This order of denial was founded on the circumstance that the People's Court had not yet rendered its decision on the verbal petition, and we then believed that, with the order of release issued by Justice perfecto in the habeas corpus proceedings instituted by Special Prosecutor Liwag and with the unanimous denial by this Court of the motion for reconsideration filed by Judge Quirino, our instructions had become clear to the People's Court and that, therefore, they would be followed in subsequent proceedings by said court if no new circumstances should develop. But after the People's Court had been served with a copy of our order of denial, it held another hearing on January 28, 1946, the third on the same petition, after which, instead of acting upon the verbal application for provisional release under bail, it entered an order dated January 31, 1946, purporting to pass upon petitioner's motion for reconsideration of the People's Court's order of October 9, 1945, which had been set aside by our decision of December 20, 1945. However, in the body of its order the People's Court held that, under the circumstances, it still had absolute discretion on the matter, contrary to the instructions contained in our resolution of January 11, 1946; and upon the basis of a secret knowledge acquired in a private conference had with the special prosecutor at the back of the petitioner, it held further that there was "a myriad points which would establish the guilt of the petitioner, contrary to our first resolution dated December 20, 1945, above quoted, wherein we held that the hearing should be in the presence of the petitioner or at least with due notice to her. With the foregoing background, the instant proceedings were commenced and prosecuted. Petitioner's original petition dated February 2, 1946, was for the writ of habeas corpus which, in substance, alleges the facts stated in the preceding paragraphs except the last order of the People's Court dated January 31, 1945, of which petitioner has not yet been notified. After receiving copy thereof, petitioner filed a supplementary petition for certiorari dated February 4, 1946, praying that she be declared entitled to provisional liberty; that the People's Court's order of January 31 be declared null and void because it i s contrary to the Constitution and the rules of court and entered with grave abuse of discretion, and that her immediate liberty under such bai l as
the court might fix, be decreed. In paragraph 3 of said supplementary petition, counsel states that, in view of the aforesaid order of the People's Court of January 31, he agrees that this proceedings be considered as a combined proceeding in certiorari andhabeas corpus , the latter in aid of the former. Under date of February 4, 1946, the Director of Prisons, who is one of the respondents herein represented by the office of the Solicitor General, filed his return wherein it is submitted that the said petition for the writ of habeas corpus is improper. Under date of February 6, 1946, the said Director of Prisons, by the same counsel, filed a "constancia" wherein he manifests that, in connection with the supplementary petition, he reiterates what has been alleged i n his aforesaid return or answer da ted the 4th of the same month. It is significant that no answer to the aforesaid supplementary petition has been filed by the People's Court. On February 8, 1946, this Court by resolution ordered as follows: The Solicitor General having filed a "constancia" to the supplementary petition, . . ., and the time to file the People's Court's answer to said supplementary petition having expired; it is ordered that the case be set for hearing . . . None of the parties appeared when the case was called for oral argument. The original petition for the writ of habeas corpus was verified. The supplementary petition was not, it is true. But this omission is immaterial, since the facts upon which the present decision is based are those appearing of record, those within the judicial notice of the Court, those alleged in the verified petition, and those alleged or admitted in the respondents' answer. Section 19 of Commonwealth Act No. 682 (People's Court Act), in its pertinent part, reads as f ollows: Provided, however, That existing provisions of law to the contrary notwithstanding, the aforesaid political prisoner may, in the discretion of the People's Court, after due notice to the Office of Special Prosecutors and hearing, be released on bail even prior to the presentation of the corresponding information, unless the Court finds that there is strong evidence of the c ommission of a capital offense. We have held in Herras Teehankee vs. Rovira ( supra), that this proviso must be read and understood in the light of such provisions of the Constitution as may bear on the subject so as to harmonize the former with the latter and avoid their conflicting with each other. Of course, where harmonization is impossible and conflict inevitable, the statute gives way to the Constitution. This is in consonance with the well-settled rule that "in construing statutes with relation to constitutional provisions, the courts take into consideration the principle that every statute is to be read in the light of the Constitution and that the Constitution and a statute involving constitutional rights will be construed together as one law." (11 Am. Jur., Constitutional Law, section 96.) Section 1, paragraph 16, of Article III, of the Constitution, provides as follows: All persons shall before conviction be bailable by sufficient sureties, except those charged with capital offenses when evidence of guilt is strong. Excessive bail shall not be required. (Emphasis supplied.) As we have held in the same case of Herras Teehankee vs. Rovira ( supra), "This constitutional mandate refers to all persons, not only to persons against whom a complaint or information has already been formally filed; it lays down the rule that all persons shall before conviction be bailable, except those charge with capital offenses when evidence of guilt i s strong. According to this provision, the general rule is that any person, before being convicted of any criminal offense, shall be bailable, except when he is charged with a capital offense and the evidence of his guilt is strong. Of course, only those persons who have been either arrested, detained, or otherwise deprived of their liberty may have occasion to seek the benefit of said provision. But in order that a person can invoke this constitutional precept, it is not necessary that he should wait until a formal complaint or information is filed against him. From the moment he is placed undgr arrest, detention or restraint by the officers of the law, he can cl aim this guarantee of the Bill of Rights, and this right he retains unless and until he is charged with a capital offense and the evidence of his guilt is strong. Indeed, if, as admitted on all sides, the precept protects those already charged under a formal complaint or information, there seems to be no legal or just reason for denying its benefit to one against whom the proper authorities may yet conclude that there exists no sufficient evidence of guilt. To place the former in a more favored position than the latter would be, to say the least, anomalous and absurd. If there is a presumption of innocence in favor of one already formally charged w ith a criminal offense (Constitution, Article III, section 1, paragraph 17), a fortiori this presumption should be indulged in favor of one not yet so charged, although already arrested or detained." It is argued that the subsequent words "before conviction" and "except those charged with capital offenses," used in the aforequoted constitutional provision evidently qualify the words "all persons," which should be read "persons charged or defendants." This is reading into the Constitution a qualification that is absent therefrom, and its effect is to curtail individual freedom which is one of the most precious treasures jealously protected in our Constitution. The words "before conviction" do not necessarily qualify the words "all persons" to mean "persons charged or defendants," because a person merely arrested with still no information against him is also a person before conviction; i. e., one who has not bee convicted. All the phrase "except those charged with capital offenses," being an exception to the general rule concerning "all persons," cannot be construed as qualifying the meaning of the words "all persons." The function of an exception is neither to color nor dominate nor destroy the general rule. Indeed, it is often said that an exception confirmsthe general rule. The rule that must seek in an exception the reasons for its being, cannot justify its existence. The provision on bail in our Constitution is patterned after similar provisions contained in the Constitution of the United States and that of many states of the Union. And it is said that: The Constitution of the United States and the constitution of many of the states provide that all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption of guilt is great, and, under such provisions, bail is a matter of right which no court or judge can properly refuse, in all cases not embraced in the exceptions. Under such provisions bail is a matter of right even in cases of capital offenses, unless the proof of guilt is evident or the presumption thereof is great. (6 C.J., sec. 168, pp. 953, 954.) It is to be observed that the word "charged" is not used in the American constitution, the reason being that no one would apply for bail unless he is detained for some charged either oral or in writing made either by a private individual or by a public officer. Certainly the charge need not be a formal information in order that a person detained may apply for bail. Thus, it has been said that: By the common law all offenses, including treason, murder, and other felonies, were bailable before indictment found , although the granting or refusing of such bail in case of capital offenses was a mater within the discretion of the court. (6 C.J., sec . 167, p. 953; emphasis ours.) The provisions of our Rules of Court on the matter of bail which are intended to make effective the constitutional provision on the same matter, contain a clear distinction between persons formally charged and persons merely arrested. It is a distinction favorable to the petitioner. Thus, sections 3 and 4 of Rule 110 use the words "the defendant" in providing for instances in which such defendant may be bailed as of right or in the discretion of the court. Whereas section 6 which refers precisely to capital offenses uses the words "persons in custody for the commission of a capital offense" in providing that he shall be admitted to bail if the evidence of his guilt is not strong. Had this provision, which is interpretative of the Constitution, been intended to refer only to persons formally charged, it would have used the word "defendant" as the other provisions above mentioned. The petitioner's case falls squarely under this section 6 of Rule 110, for she is a "person in custody for the commission of a capital offense," and, therefore, she is entitled to bail if the evidence of her guilt is not shown to be strong.
Technical and useless efforts have been made to draw a distinction between the situation of a person detained and that a person already charged so as to exclude the former from the constitutional protection. But the more efforts are made in that direction, the clearer becomes the distinction in favor of the detainee. The presumption of innocence in favor of one against whom there already is a formal charge (Constitution, Article III, section 1, paragraph 17) should clearly be stronger in favor of one not yet so charged, though already arrested or detained. And since the personal liberty guaranteed by the Constitution is predicted upon the presumption of innocence, such guarantee should obviously be stronger in favor of a person merely arrested or detained than of a person already accused. The right to freedom is a sacred right, complementing the right to life, and the guarantee contained in the fundamental law for the preservation of such sacred right should not be lightly brushed aside. All doubts that may arise in the construction of the Constitution — and, in the instant case none exists — should be resolved in favor of individual freedom. We reiterate now that, under the constitution, all persons, without distinction, whether formally charged or not yet so charged with any criminal offense, "shall before conviction be bailable," the only exception being when the charge is for a capital offense and the court finds that the evidence of guilt is strong. The power of the court to make sure finding implies a full exercise of judicial discretion. It is for this reason that capital offenses are said to be bailable in the discretion of the court. In construing section 63 of the Code of Criminal Procedure which provides that "all prisoners shall be bailable before conviction, exception those charged with the commission of capital offenses when proof of guilt is evident or the presumption of guilt is strong," which is substantially the same as Article III, section 1, paragraph 16, of our constitution, this Court, through Mr. Justice Moreland, said: "It is clear that even capital offenses are bailable in the discretion of the Court before conviction." (Emphasis ours; United States vs. Babasa, 19 Phil., 198.) And such discretion has not other reference than to the determination as to whether or not the evidence of guilt is strong. Thus, in Marcos vs. Cruz (67 Phil., 82), this Court, through Justice Imperial, held that "when the crime charged is punishable with death, the right to be admitted to bail is discretionary on the court, depending on whether or not the evidence of guilt is strong." And this was a mere reiteration of a ruling laid down in a former case (Montalbo vs. Santamaria, 54 Phil., 955). In that case the accused was charged with murder with the qualifying circumstance of evident premeditation and the aggravating circumstance of treachery. The accused applied for provisional release under bail. The judge refused to determine whether the evidence of guilt was strong upon the belief that he had no discretion to grant the application. The accused filed a petition for mandamus against him with this Court. And this Court, through Mr. Justice Villamor, held: The object of this application is to require the respondent judge to comply with his ministerial duty of considering and deciding whether the proof is evident or the presumption of guilt is strong against the defendant, for the purpose of granting or denying his provisional liberty. Suppliant does not ask that the matter be decided one way or the other, but simply that it be decided. In other words, it is proposed not to interfere with the judicial discretion to grant or deny the motion for provisional liberty, but for enforce the exercise of said discretion according to the judgment and discretion of the respondent. In this case a judge has declined to make a decision which the law enjoins upon him. (Emphasis ours.) And in the dispositive part this Court said: . . .. Wherefore, the respondent judge is hereby ordered to determine whether in the case at bar the proof is evident or the presumption of guilt is strong against the defendant, and to exercise judicial discretion in denying or granting the petition for provisional liberty. Without special pronouncement of costs. So ordered. (Emphasis ours.) And this is the rule in the United States; Although the right to bail in capital cases, except those in which the proof is evident or the presumption great, is generally absolute, the determination as to whether the evidence in any particular case comes w ithin these exceptions is a matter for the sound discretion of the court or officer hearing the application. (Emphasis ours; 8 C.J. S., p. 56 on Bail.) Primarily the prisoner cannot demand bail as a matter of right where the offense is a capital one, since, upon ascertaining the character of the charge against him, the next question would be as to the degree of proof and the nature of the presumption of guilt. therefore the power to admit to bail generally becomes a matter of judicial discretion in this class of cases, and, although the exercise of this discretion will not be controlled unless manifestly abuse, it should be exercised with great caution. (Emphasis ours; 6 C.J., sec. 170, pp. 954, 955.) It is a well-known rule of statutory construction that "all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. They are, therefore, to be construed in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and the decisions of the courts ... " (59 C.J., 1038.) Since the People's Court Act and the Constitution and other statutes in this jurisdiction should be read as one law, and since the language used by this Court in construing the Constitution and other statutes on the matter of bail is substantially the same as the language used by the People's Court Act on the same subject, the most natural and logical conclusion to follow in cases of capital offenses before conviction is that the discretion provided in said Act is the same discretion provided in the Constitution and similar statutes, that discretion having reference only, as above stated, to the determination of whether or not the evide nce of guilt is strong. To hold that the People's Court has uncontrolled discretion in such cases to deny bail even where the evi dence of guilt is not strong or there is absolutely no evidence at all, is to make the Act offensive not only to the letter but also to the spirit of the Constitution, and this is contrary to the most elementary rules of statutory construction. A statute, which provides that "'a person charged with an offense may be admitted to bail before conviction, as follows" 1st, as a matter of discretion in all case where the punishment is death; 2nd, as a matter of right in all other cases, and that "no person shall be admitted to bail when he is charged with an offense punishable with death, when the proof is evident and the presumption great," is inconsistent with the constitutional provision that "all persons shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident or the presumption great," since it denies bail as a matter of absolute right in capital cases where the proof is not evident nor the presumption great. (People vs. Tinder, 19 Cal., 539, 542; 81 Am. Dec., 77.) It is to be observed in this connection that we hold no portion of the People's Court Act to be unconstitutional, but, upon the contrary, we rely upon the presumption of constitutionality, and because of that presumption we construe the Act in consonance with the mandates of the Constitution. It is an elementary principle that where the validity of a statute is assailed and there are two possible interpretations, by one of which the statute would be unconstitutional and by the other it would be valid, the court should adopt the construction which would uphold it. It is the duty of courts to adopt a construction of a statute that will bring it into harmony with the constitution, if its language will permit. (11 Am. Jur., Constitutional law, section 97.) However, the discretion of the Court, as above described, is not absolute nor beyond control. Indeed, its very concept repels the idea of unlimited power. It must be sound, and exercised within reasonable bounds. Since judicial discretion, by its very nature, involves the exercise of the judge's individual opinion, the law has wisely provided that its exercise be guided and controlled by certain well-known rules which, while allowing the judge rational latitude for the operation of his own individual views, prevent them from getting out of control. An uncontrolled or uncontrollable discretion is a misnomer. It is a fallacy. Lord Mansfield, speaking of the discretion to be exercised in Mansfield, speaking of the discretion to be exercised guided by law. It must be
governed by rule, not by humour; it must not be arbitrary, vague, and fanciful; but legal and regular." (Rex vs. Wilkee, 4 Burr., 2527, 2539; 98 Reprint, 327, cited in note 26 [ a], 6 C.J., p. 954.) The policy pervading our jurisprudence is to commit as little as possible to judicial discretion, presuming that "'that system of laws is best which confides as little as possible to the discretion of the judge — that judge is best who relies as little as possible upon his opinion." In pursuance of this policy, ever since the provisions "that all persons shall be bailable by sufficient sureties except for capital offenses, where the proof is great," become a part of the settled constitutional and statutory laws of nearly all the states of the Union, the courts have endeavored, with more or less success, to formulate some stable rules to guide their judgment. ( In reThomas, 20 Okl., 167, 171; 93 P., 980; 39 L. R. A., N.S. 752 and note, cited in 6 C.J., p. 955, note 31 [ a].) How exercised. The discretion exercised by the court in granting or refusing bail is not an arbitrary but a judicial one; it is governed or directed by known and established rules, and in truth cannot be otherwise applied then to decide whether or not the facts bring the case within their operation. (6 C.J., p. 954.) In this jurisdiction inferior courts are controlled in the exercise of their discretion, first, by the applicable provisions of the Constitution and the statutes; second, by the rules which the Supreme Court may promulgate under the authority of Article VIII, section 13, of the Constitution; and, third, by those principles of equity and justice that are deemed to be part of the laws of the land. Upon the basis of constitutional, legal and reglementary provisions combined with well-known principles of practice and procedure, this Court in its resolution of January 11, 1946, above quoted, gave the following instructions to the People's Court: (1) In capital cases like the present, when the prosecutor does not oppose the petition for release on bail, the court should, as a general rule, in the proper exercise of its discretion, grant the release after approval of the bail which it should fix for the purpose; (2) But if the court has reasons to believe that the special prosecutor's attitude is not justified, it may ask him questions to ascertain the strength of the state's evidence or to judge the adequacy of the amount of bail; (3) When, however, the special prosecutor refuses to answer any particular question on the ground that the answer any particular question on the ground that the answer may involve a disclosure imperiling the success of the prosecution or jeopardizing the public interest, the court may not compel him to do so, if and when he exhibits a statement to that effect of the Solicitor General, who, as head of the Office of Special Prosecutors, is vested with the direction and control of the prosecution, and may not, even at the trial, be ordered by the court to present evidence which he does not want to introduce — provided, of course, that such refusal shall not prejudice the rights of the defendant or detainee. The first instruction is predicated upon section 7 of Rule 110 of the Rules of Court in connection with section 15 and 22 of the People's Court Act. Section 15 of the People's Court Act, in entrusting the Office of Special Prosecutors with "the direction and control of the prosecution" in cases mentioned in said Act "the provisions of any law or rules of court to the contrary notwithstanding," necessarily confers upon said office the exclusive power, coupled with the correlative responsibility, of deciding, among others, such questions as to whether or not it will oppose bail petitioned by a detainee in any of said cases, whether or not it should adduce evidence, and the kind of quantity thereof, or whether or not to reveal such evidence at the hearing of any such petitions. The law assigns to the c ourt and the public prosecutors their respective powers and responsibi lities in the judicial elucidation of these cases, just as in all others. The very exigencies of an orderly and efficient administration of justice demand that the judge should not invade the province of the prosecutors any more than the latter can invade that of the former. If the prosecutor prosecutes, and the judge judges, each within his proper sphere, neither need have any compunction over the discharge of his own mission. Section 22 of the People's Court Act provides that the prosecution and trial of cases before said court should be in accordance with rules of court, and section 7 of Rule 110 provides that at the "hearing of an application for admission to bail made by any person who is in custody for the commission of a capital offense, the burden of showing that the evidence of guilt is strong is on the prosecution." The prosecutor is free to satisfy or not to satisfy that burden. The Solicitor General is free to oppose or not to oppose the application for bail, as above stated, according to what he believes to be in the best interests of the state. And it is unnecessary to say that if he refuses to satisfy his burden because he does not oppose the application for bail, the usual course open to the court leads to the granting of the bail. When the first proviso of section 19 Commonwealth Act No. 682 and Article III, section 1, paragraph 16, of the Constitution, refer to the case where the court finds that there is strong "evidence" of the commission of a capital offense, they necessarily mean evidence properly adduced by the parties or any of them before it, in the manner and form prescribed by the laws and rules of judicial procedure. If, for any reason, any party should abstain from introducing evidence in the case for any definite purpose, no law nor rule exists by which he may be so compelled and the court before which the case is pending has to act without that evidence and, in so doing, it clearly would not be failing in its duties. If the Constitution or the law plots a certain cour se of action to be taken by the court when certain evidence is found by it to exist, and the opposite course if that evidence is wanting, and said evidence is not voluntarily adduced by the proper party, the court' s clear duty would be to adopt that course which has been provided for in case of absence of such evidence. Applying the principle to the case at bar, it was no more within the power — nor discretion — of the court to coerce the prosecution into presenting its evidence than to force the prisoner into adducing hers. And when both elected not to do so, as they had a perfect right to elect, the only thing remaining for the court to do was to grant the application for bail. Let not the case of Payao vs. Lesaca (63 Phil., 210), be invoked in respondent's favor. True, in said case this Court approved of the action of the trial court in considering the record of the preliminary investigation in determining the question of bail. But it must be remembered, in the first place, that at the same preliminary investigation the accused must, under the law, be presumed to have been present; confronted with the witnesses her; had the right to cross-examine them, make objections, present her own evidence, and to be heard in her own defense; and, in the second place, the provincial fiscal presented said record at the hearing ( vide, page 214, volume cited on the question of bail) again in the presence of the accused who again had a right to interpose objections, adduce evidence and be heard in defense. Had the fiscal not presented said record at the hearing, it would not have been considered by the Court of First Instance, since, generally, the record of the preliminary investigation before the justice of the peace is not by itself a party of the record on the case in the Court of First Instance (United States vs. Abuan, 2 Phil., 130) . In the case of Marcos vs. Cruz (67 Phil., 82), involving a capital crime, a preliminary investigation ex parte was conducted by the Judge of First Instance previous to the arrest of the defendants. After their arrest, the defendants asked for provisional release under bail, and the petition was denied by respondent judge upon the ground that the evidence disclosed at the ex parte preliminary investigation was strong and that, therefore, the defendants were not entitled to bail. This Court disapproved the procedure followed by respondent judge as follows: Se arguye que el Juez recurrido, antes de expedir el mandamiento de arresto de los acusados, examino a los dos testigos de cargo que presento el Fiscal y que estas pruebas establecieron asimismo la presuncion de culpabilidad de los acusados y el requerimiento adicional de que las pruebas de culpabilidad deben ser evidentes. Nopodemos prestar nuestro asentimiento a esta pretension. No debe olvidarse que tales pruebas se recibieron en ausencia de los acusados y estos no tuvieron oportunidad de verles declarar ni de repreguntarles . . . . Otras razones que impiden el que tales pruebas se puedan tener en cuenta contra los acusados on: que el Fiscal no las produjo ni ofrecio en la vista de las peticiones de libertad bajo fianza . . . En tales circunstancias era deber del Juez recurrido requerir al Fiscal que presente sus pruebas para demostrar que el delito imputado era capital, que las pruebas eran evidentes y que la presuncion de culpabilidad era fuerte.
It is thus clear that the People's Court, in the exercise of its discretion, can consider no evidence that has not properly been presented to it by the parties, and that, when the special prosecutor elects not to oppose the application for bail and, consequently, refuses to present any evidence, "the court should, as a general rule, in the proper exercise of its discretion, grant the release after approval of the bail which it should fix for the purpose." We said "in the proper exercise of its discretion," for the reason that, since such discretion has reference to the weight of evidence, it should be exercised in favor of the applicant when there is no evidence — much less strong evidence — presented by the prosecution. In other words, the discretion should be exercised as if the court, after examining the evidence, found none against the applicant. Of course, the discretion if negligible when no evidence is presented by the prosecutor, but some amount of discretion still remains, for, as stated in or first instruction, the discretion should be exercised in favor of the applicant "as a general rule." We used advisedly these words "as a general rule," for there may be an exception, as that referred to in the second instruction. The prosecutor might not oppose the application for bail and might refuse to satisfy his burden of proof, but where the court has reasons to believe that the prosecutor's attitude is not justified, as when he is evidently committing a gross error or a dereliction of duty, the court must possess a reasonable degree of control over him in the paramount interest of justice. Under such circumstance, the court is authorized by our second instruction to inquire from the prosecutor as to the nature of his evidence to determine whether or not it is strong, it being possible for the prosecutor to have erred in considering it weak and, therefore, recommending bail. The course followed by the respondents was obviously predicated on this implied authority, but the power of the court to that effect must have its limitation founded equally on the paramount interest of justice. And we come now to our third instruction. The question made by the court to the prosecutor may involve a disclosure of evidence that may imperil the success of the prosecution or jeopardize the public interest. In such event, according to our third instruction, the prosecutor may not be compelled to make the disclosure "if and when he exhibits a statement to that effect of the Solicitor General, who, as Head of the Office of Special Prosecutors, is vested with the direction and control of the prosecution, and may not even at the trial be ordered by the court to present evidence which he does not want to introduce — provided, of course, that such refusal shall not prejudice the right of the defendant or detainee." It must be observed that the court is made to rely upon the official statement of the Solicitor General on the question of wh ether or not the revelation of evidence may endanger the success of the prosecution and jeopardize the public interest. This is so, for there is no way for the court to determine that question without having the evidence disclosed in the presence of the applica nt, disclosure which is sought to be avoided to protect the interests of the prosecution before the trial. In this connection, we bear in mind what Chief Justice Marshall said in Burr's trial with reference to the power of the court to determine whether or not a document in the possession of the President contains secret i nformation. Chief Justice Marshall said that "much reliance must be placed on the declaration of the President" and that "the court out to consider the reasons which would induce the President to refuse to exhibit such a letter as conclusive on it." Of course, the Solicitor General is not the President, but the question involved was one that might affect the trial on the merits, unlike the matter before us which is a mere incident concerning bail. Thus, to a certain extent the rule may be adopted by analogy. The Solicitor General is a high offic er of the Government, made responsible by law for the prosecution of offenses before the People's Court, and he is in a better position than anyone else, including the court itself, to determine the risks which a disclosure of his evidence may entail. Since the judgement of the Solicitor General on this simple matter maybe deemed to be reliable and there being no way for the court to verify it without running the risks so ught to be avoided, it is made final. If further developments show the Solicitor General to have betrayed his trust, he may surely be called to account. The power of the Solicitor General is not, however, unlimited under our third instruction. He cannot refuse to make a disclosure when his refusal shall prejudice the right of the defendant or detainee. The prosecutor may not, for instance, choose to make disclosures damaging to the applicant, and later refuse to disclose other evidence favorable to her, on the pretext that such disclosure may imperial the success of the prosecution. It may be said that there is nothing in these instructions expressly indicating the course to be followed by the People's Court in case the Solicitor General refuses validly to disclose his evidence under our third instruction. This is so, because things that are selfevident need not be expressly stated. The situation is clear. If the Solicitor General refuses validly to disclose his eviden ce and, for that reason, no evidence lies before the court, then the situation comes under our first instruction, and the petition for bail should be granted. We do not need to state this expressly, for it is self-evident from the instructions themselves. We, do not have to repeat in the third instruction what is already covered in the first. These instructions, which are simple and clear, having reference to three different possibilities simply and clearly defined, are directed to judges who are presumed to be versed in the law, and should not be clogged with repetitions that can in no measure add to their lucidity. It is our considered opinion that the procedure adopted by the People's Court, after the third hearing of January 28, 1946, whereby it examined the special prosecutor's evidence in a private inquiry without the presence of the petitioner, and upon the basis of knowledge acquired therein it denied the application for bail., is improper, arbitrary, and constitutes a grave abuse of discretion: Firstly, because it violates our order of December 20, 1945, wherein it was held that the hearing on applications for bail should be in the presence of the applicant or at least with due notice to her, and, therefore, such private inquiry cannot be a part of the hearing. The knowledge or information thus obtained was without the safeguards of confrontation, cross-examination and opportunity to be heard in defense on the part of the prisoner and cannot be a proper ground for denying bail, as ruled expressly by this court in Marcos vs. Cruz, supra; Secondly, because such private inquiry is inconsistent with our three instructions above mentioned. The procedure outlined in said three instructions is such as to allow no room for a private conference between the court and the special prosecutor. If such kind of conference were permissible, we would not have to qualify or limit the power of the court to inquire in the three i nstances contemplated in our three instructions. The nature of such instructions is such as clearly to show that nothing can be used a gainst the applicant that has not been brought properly before the court in her presence. It is precisely for this reason that the Solicitor General is given the final word on the question of whether the disclosure of the prosecution's evidence may endanger the success of the prosecution because there is no way for the court to make such determination without having the evidence disclosed in the presence of the applicant and without thus running the risks sought to be avoided. If private conference were permissible, we would not have required the solemn statement of the Solicitor General, and, instead, we would have provided that, upon the prosecutor's refusal to disclose evidence in the presence of the applicant, the court may call him to a private conference. But we did not do so, because a private conference is strongly repugnant to the requirements of a hearing provided by law, and thus the solemn statement of the Solicitor General is made the end of the court's power to i nquire legally in a case where the prosecutor does not oppose the granting of the bail; and Thirdly, the knowledge acquired in such private conference is not different in character from a Judge's personal or special knowledge, upon which, by well-settled rules of evidence, he, as judge, has no right to act. . . . . and it is hardly necessary to state that the judge has no right to act upon his own person or special knowledge of facts as distinguished from that general knowledge which might properly be important to other persons of intelligence. More than two hundred years ago in Sir John Fenwick's trial, it was said by the solicitor general: "I do not say that a judge upon his private
knowledge ought to judge, he ought not. But if a judge knows anything whereby the prisoner might be convicted or acquitted (not generally known), then I do say he ought to be called from the place where he sate and go to the bar and give evidence of his knowledge." In a Utah case one of the briefs contained the statement: "The fact that the Utah Nursery Company, a corporation, was personally known to the country judge, had been admitted in oral argument by counsel for appellant and did not need to be proven." The court said that nothing in the record supported the statement that it was admitted by counsel that the corporation was a foreign corporation, and counsel would not seriously contend that the personal knowledge of the judge meets the requirements of the law that proof of the facts shall be made. The law is well settled upon the point that the judge's personal knowledge cannot be used — in criminal cases he should be, it not a witness, certainly not a judge — in civil cases, his knowledge must not be made apparent to the jury. (1 Jones on Ev., 2 ed., pp. 644, 645, sec. 133.) In a case where a Public Utility Commission issued a r egulation of telephone rates upon data gathered in a private investigation, Justice Cardozo said: From the standpoint of due process — the protection of the individual against arbitrary action — a deeper vice is this, that even now we do not know the particular or evidential facts of which the Commission took judicial notice and on which it rested its conclusion. Not only are the facts unknown; there is no way to find them out. When price lists or trade journals or even government reports are put in evidence upon a trial, the party against whom the are offered may see the evidence or hear it and parry its effect. Even if they are copied in the findings without preliminary proof, there is at least an opportunity in connection with a judicial review of the decision to challenge the deductions made from them. The opportunity is excluded here. The Commission, withholding from the record the evidential facts that is has gathered here and there, contents itself with saying that in gathering them it went to journals and tax lists, as if a judge were to tell us, "I looked at the statistics in the Library of Congress, and they teach me thus and so." This will never do if hearings and appeals are to be more than empty forms. What the Supreme Court of Ohio did (in sustaining the order of the Commission) was to take the word of the Commission as to the outcome of a secret investigation, and let it go at that. "A hearing is not judicial, at least in any adequate sense, unless the evidence can be known." (Ohio Bell Telephone Co. vs. Public Utilities Commission, 301 U.S., 292; 57 Sup., 724.) We shall now proceed to resume the attitude observed by respondent judges in connection with the application for bail filed by the petitioner. It must be recalled that in our first decision of December 20, 1945, we held, in connection with the application for bail filed by the petitioner, that the People's Court should hold a hearing with due notice to both the Solicitor General and the applicant, and that the order issued by the People's Court denying such application without such hearing was null and void. It must be observed, furthermore, that the People's Court then denied the petition only because the Solicitor General recommended a bail of P50,000 from which it inferred that the crime involved must be serious, when said court admittedly granted bail in the same amount to other detainees of the same class as the herein petitioner. After the People' Court was notified of our aforesaid order, it held a hearing on December 27, 1945, wherein the herein petition filed a verbal application for bail, which the special prosecutor did not oppose. The court, however, instead of granting the bail, directed questions to the special prosecutor to compel him to reveal his evidence. The applicant, without waiting for the decision of the People's Court granting or denying the application for bail., came to this Court asking that the People's Court be ordered to grant the bail applied for. We denied the petition as premature, but we ordered the People's Court to render its decision on the aforesaid verbal petition in conformity with the three instructions above mentioned. The People's Court called another hearing on Januar y 15, 1946, and notwithstanding the special prosecutor's having reiterated that he had no objection to the application for bail, the court insisted on addressing to him practically the same question as those made at the hearing of December 27, 1945. And upon the prosecutor's declining to answer, supported by his presentation of a certificate of the Solicitor General that the answer to said questions may imperial the success of the prosecution and jeopardize the public interest, respondent court, through Judge Antonio Quirino, in violation of our third instruction above mentioned, ordered the arrest of the special prosecutor for alleged contempt of court. The petitioner came to this Court asking that she be granted bail in view of the grave abuse of discretion committed by the People's Court, particularly by Judge Quirino. We likewise denied that motion to give the People's Court the chance to dispose of the case in accordance with law and the Constitution as construed by this Court. But the People's Court called another hearing on January 28, 1946, in which again the special prosecutor reiterated that he had no objection to the release under bail applied for, but the Peoples Court after asking him some unimportant questions called him to a private hearing at the back of the applicant, to inquire from him the strength of his evidence. Thereafter, the People's Court issued an order disregarding, either knowingly or unwittingly, all the instructions issued by this Court, and maintaining its alleged unbridled discretion on the matter, a theory which we have rejected in our previous decision and instructions. And, what is worse, the People's Court, relying on information acquired in private conference with the special prosecutor, declared that there was "a myriad of points" against the applicant and denied the application. It will thus be observed that, in connection with the application for bail filed by the petitioner, the People's Court has disregarded the law and the Constitution, not only once but as many as four times — first, on October 9, 1945; second, on December 27, 1945; third, on January 15, 1946, when it ordered the arrest of the special prosecutor who was acting in conformity with our instructions; and fourth, on January 28, 1946, when it held a private conference with the special prosecutor. On the first three occasions we exhausted all the measures to make the People's Court act in accordance with its discretion vested by the law and the Constitution as construed by this Court in its order and instructions. But all to no avail. Considering that this attitude of the People's Court seriousl y affects petitioner's sacred right of individual freedom guaranteed by the Constitution which has been delayed for nearly four months, this Court directly granted her request for release under bail instead of ordering the People's Court to do so. Further delay was thus avoided. It is maintained that this body has no authority to grant provisional release under bail in a petition for certiorari. The argument is advanced that all this Tribunal may do is to annul the Peoples Court's order and remand the case for further proceedings. We recognize no such limitation. In several certiorari cases, this Court in addition to annulling the attacked decision or order, issued such other directives as were found to be necessary in the interest of justice. (Cf. Javier vs. Paredes and Gregorio, 52 Phil., 910;Beech vs. Jimenez and Crossfield, 12 Phil., 212.) And it must be recalled that this is a combined proceeding for certiorari and habeas corpus , the latter in aid of the former, as above stated. And, furthermore, in a special civil action for certiorari, this Court has the power to grant "such of the relief prayed for as the petitioner is entitled to, with or without costs, as justice requires." (Rule 67, sec. 8.) One of the reliefs prayed for in the instant case is that the petitioner be granted directly by this Court provisional release under bail, and considering the unjustified delays suffered by the petitioner due to the insistent attitude of the People's Court in disregarding the law and the Constitution as construed by this Court, it is our considered opinion that the petitioner is entitled to the relief prayed for in the interest of justice. Particularly so in the instant case which is a combine proceeding of certiorari and habeas corpus . So also the writ has always been held to be available to a prisoner entitled to be admitted to bail and to whom such right has been denied. Farrel vs. Hawley, 78 Conn., 150; 61 Atl., 502; 112 A.S.R., 98; c Ann. Cas., 874; 70 L.R.A., 686; In re Schriber, 19 Idaho, 531; 114 p., 29; 37 L.R.A. (N.S.), 693; Hight vs. United States, Morris (Ia.) 407; 43 Am. Dec., 111; Ex parte Alexander, 59 Mo., 598; 21 Am. Rep. 393. Peo. vs. McLeod, 1 Hill (N.Y.), 377; 25 Wend., 483; 37 Am. Dec. 328; In re Thomas, Okl., 167; 93 L.R.A. (N.S.), 752;
In re Williamson, 26 Pa. St., 9; 67 Am. Dec., 374; Ex Parte Newman, 38 Tex, Crim., 164; 41 S.W., 628, 70 A.S.R., 740; State vs. Foster, 84 Wash., 58; 146 P., 169; LR. 19158 E., 340 and note. Denial of Bail. — Subject to statutory limitations, the writ of habeas corpus may be used to procure the admission to bail of a party entitled thereto, whether in a criminal case or a civil action, unless admittance is a matter of discretion and has been refused by the proper authorities without any abuse of discretion . (Emphasis supplied.) (29 C.J., sec. 84, p. 94.) U.S. — U.S. vs. Hamilton, 3 Dall., 17; 1 Law ed., 490. Ala. — Ex. p. State, 205 Ala., 11; 87 S., 594; State vs. Lowe, 204 Ala., 288; 85 S., 707; Ex p. Croom, 19 Ala., 561. Ariz., — In re Haigler, 15 Ariz., 150; 137 P., 423. Ark. — Ex p. White, 9 Ark., 222. Cal., — Ex p. Curtis, 92 Cal., 188; 28 P. 223; Ex p. Duncan, 53 Cal., 410. Colo. — Romeo vs. Downer, 69 Colo., 281; 193 P., 559. Fla. — Russel vs. State. 71 Fla., 236; 71 S., 27; Ex p . Nathan, 50 S., 38; Benjamin vs. State, 25 Fla., 675; 6 S., 433; Holley vs. State, 15 Fla., 688; Finch vs. State, 15 Fla. 633. Ind., — Ex p. Richards, 102 Ind., 260; 1 N. e., 639; Ex p. Sutherlin, 56 Ind., 595; Ex p. Moore, 30 Ind., 197; Ex p . Hefren, 27 Ind., 87; Lumm vs. State, 3 Ind., 293; State vs. Best, 7 Blackf., 611. Iowa. — Ford vs. Dilley, 174 Iowa, 243; 156 N.W., 513. Kan. — In re Rolf, 30 Kan., 758; 1 P., 523. Miss. — Marley vs. State, 109 Miss., 169; 68 S., 75, 770; Street vs. State, 43 Miss., 1; Ex p. Gray, 30 Miss., 673. Mo. — Alexander's Pet., 59 Mo. 598; 21 Am. R., 393. Nev. — Ex. p. Nagel, 41 Nev., 86; 167 P., 689. N. I. — Peo. vs. Folmsbee, 60 Barts., 480. N. C. — State vs. Herndon, 107 N.C., 934; 12 SRE., 268: State vs. Wiley, 64 N.C., 821; State vs. Edney, 60 N.C., 463.
The power of the Supreme Court or of a justice thereof, to bail in all cases, whether it be treason, murder, arson, or any other offense, is indisputable. (People vs. Van Horne, 8 Bar., 158; People vs. Perry, 8 Abb., Pr., N.S., 27, cited in note on p. 758, 39 L.R.A., new series.) The Supreme Court of the United States has power to admit to bail on a charge of high treason. (U.S. vs. Hamilton, 3 Dal., 17; 1 Law. ed., 490, cited in note on pp. 758, 759; 39 L.R.A., new series.) To hold this Court powerless to grant bail directly under the circumstances of the instant case is certainly to destroy the great function of the highest tribunal of the land cre ated by the Constitution as the ultimate bulwark of the liberties of the people. No costs. So ordered. Moran, C.J., and Bengzon, J., concur. Separate Opinions PARAS, J., concurring in the result:
I concur in the result for the simple reasons stated in our concurring and dissenting opinion in Herras Teehankee vs. Rovira (75 Phil., 634), in which the main questions raised were the same as those involved in this case. PERFECTO, J., concurring: We concur in the following pronouncements of the decision: 1. That "in connection with the application for bail filed by the petitioner, the People's court has disregarded the law and the Constitution, not only once but as many as four times — first, on October 9, 1945; second, on December 27, 1945; third, on January 15, 1946, when it ordered the arrest of the special prosecutor who was acting in conformity with our instruction; and fourth, on January 8, 1946, when it held a private conference with the special prosecutor." 2. That this Supreme Court has authority to grant provisional release under bail in a petition for certiorari. As a matter of fact, "in several certiorari cases, this Court in Addition to annulling the attacked decision or order, issued such other directives as were found to be necessary in the interest of justice." 3. That in a special civil action for certiorari, this Court has the power to grant "'such of the relief prayed for as the petitioner is entitled to, with or without costs, as justice requires.'" (Rule 67, sec. 8.) 4. That "considering the unjustified delays suffered by petitioner due to the insistent attitude of the People's Court in disregarding the law and Constitution as construed by this Court, it is our considered opinion that the petitioner is entitled to the relief prayed for in the interest of justice. Particularly so in the instant case which is a combined proceeding of certiorari and habeas corpus ." 5. That "subject to statutory limitations, the writ of habeas corpus may be used to procure the admission to bail of a party entitled thereto, whether in a criminal case or a civil action, unless admittance is a matter of discretion and has been refused by the proper authorities without any abuse of discretion." 6. That "the power of the Supreme Court or of a justice thereof, to bail in all cases, whether it be treason, murder, arson, or any other offense, is i ndisputable." 7. That "to hold this Court powerless to grant bail directly, under the circumstances of this instant case, is certainly to destroy the great functions of the highest tribunal of the land, created by the Constitutional as the ultimate bulwark of the liberties of the people." 8. That "under the Constitution, all persons, without distinction, whether formally charged or not yet so charged with any criminal offense, 'shall before conviction be bailable,' the only exception being when the charge is for a capital offense and the court finds that the evidence of guilt is strong." 9. That "it is clear that even capital offenses are bailable in the discretion of the court before conviction." (United States vs. Babasa, 19 Phil., 198.) 10. That "in capital cases like the present, when the prosecutor does not oppose the petition for rel ease on bail, the court should, as a general rule, in the proper exercise of its discretion, grant the release after the approval of the bail which it should fix for the purpose," although we disagree with the qualification that it is a general rule only, because, to our mind, the true rule must be unqualified, without exception, and compulsory. 11. That the Solicitor General "is vested with the direction and control of the prosecution, and may not even at the trial be ordered by the court to present evidence which he does not want to introduce — provided, of course, that such refusal shall not prejudice the right of the defendant or detainee.'" 12. That "the very exigencies of an orderly and efficient administration of justice demand that the judge should not invade the province of the prosecutors any more than the latter can invade that of the former. If the prosecutor prosecutes, and the judge judges, each within his proper sphere, neither need have any compunction over the discharge of his own mission." 13. That section 15 of the People's Court Act confers upon the office of special prosecutors "the exclusive power, coupled with the correlative responsibility, of deciding, among others, such questions as to whether or not it will oppose bail petitioned by a detainee in any of said cases (the once provided for in the Act), whether or not it should adduce evidence, and the kind or quantity thereof, or whether or not to reveal such evidence at the hearing of any such petitions" for bail.
14. That at "'the hearing of an application for admission to bail made by any person who is in custody for the commission of a capital offense, the burden of showing that evidence of guilt is strong is on the prosecution' (sec. 7, of rule of Rule 110). The prosecutor is free to satisfy or not to satisfy that burden." 15. That "if, for any reason, any party should abstain from introducing evidence in the case for any definite purpose, no law or rule exists by which he may be so compelled and the court before which the case is pending has to act without the evidence and, in so doing, it clearly would not be failing in its duties. Applying the principle to the case at bar, it was no more within the power — nor discretion — of the court to coerce the prosecution into presenting its evidence than to force the prisoner into adducing hers. And when both elected not to do so, as they had a perfect right to elect, the only thing remaining for the court to do was to grant the application for bail." 16. That "the procedure adopted by the People's Court, after the third hearing of January 28, 1946, whereby it examined the special prosecutor's evidence in a private inquiry without the presence of the petitioner, and upon the basis of knowledge acquired therein it denied the application for bail, i s improper, arbitrary, and constitutes a grave abuse of discretion." On the strength of the legal principles, doctrines and rules maintained in our several opinions in Duran vs. Abad Santos (75 Phil., 410), and in Herras Teehankee vs. Rovira (75 Phil., 634), and of the above pronouncements of the majority opinion in this case, we concurred in the resolution adopted on February 16, 1946, ordering that "petitioner Haydee Herras Teehankee, upon her filing in this Court of a bond in the sum of P50,000 and upon said bond being duly approved, be forthwith set at liberty." The present case is the third recourse resorted to by petitioner to obtain from this S upreme Court relief against her detention, the first being the petition in Raquiza vs.Bradford (75 Phil., 50), and the second the one in Herras Teehankee vs. Rovira, supra. After twelve months of detention, after the ordeals of legal battles she fought in the People's Court and in this Supreme Court, petitioner's endeavors were at last, although belatedly, crowned with success, with the resolution in the present case, ordering her release on bail, exactly as we have repeatedly proposes months ago in Herras Teehankee vs. Rovira, supra. To win this last battle for personal liberty, it has been necessary for petitioner to wage a series of the most relentless legal fights known in judicial history, with the characteristic steadfastness of one who is fully convinced that reason and law are one's side, and for the highest tribunal of the land to undergo one of the most speedy and heartening doctrinal evolutions i n the brief span of a few months, in which the last development resulted in an outright reversal of the position originally taken on the same question. The initial position was taken in the several months old, but already obsolete case of Duran vs. Abad Santos, supra , where it was our lot to be a lone dissenter against doctrines now happily scrapped and discarded. Several evolutionary phases appear in the decision and directive orders issued in Herras Teehankee vs. Rovira, supra. The present stage of the evolution as it appears in the decision rendered in this case, reverses the position taken in the Duran case, although we believe it needs some additional progressive steps in order to meet fully the requirements of the letter and spirit of the Constitution regarding the question of personal liberty. Upon this we have to refer to our opinions in Raquiza vs. Bradford, supra, People vs. Bañes, and People vs. Samano (Res., 41 Off. Gaz., 888), People vs. Abad (Res., 42 Off. Gaz., 532 and 43 Off. Gaz., 5030), and People vs. Barrera de Reyes (46 Off., Gaz., 981). There are things to be deplored in the petitioner's case. One of them, the crux in this case, is the judicial stubbornness which cause such a miscarriage of justice that will remain forever as an unreasonable blot in our government. Such manifestation of entetement had not bee cured even by the specific instructions and directives which this Supreme Court, with utmost fatherly complaisance and maternal forbearance, vouchsafed to an erring inferior court in Herras Teenhankee vs. Rovira, supra, so much so that against its effects the authority of the Supreme Court had to be invoked to protect the rights of and restore to freedom one of the special prosecutors of the government, who in the honest performance of his official duties and in his courageous efforts to protect the high interests of state and justice, had been illegally imprisoned. (Tañada vs. Quirino, 42 Off. Gaz., 934.) No better manifestation of such ungovernable headstrongness may be shown than the on e displayed by an inferior court when, by insisting on giving effect to its order which was set aside in a final and executory decision rendered by the Supreme Court, it showed wanton contempt and disregard for the authority of the highest tri bunal of the country, and in disregarding the law and constitution, not only once, but as many as four times. The order dated January 31, 1946, issued by respondent judges, copy of which is attached to their answer dated February 4 as Annex A, is expressly intended to restore and give full effect to the order of the People's Court dated October 9, 1945, which is one of the two orders specifically set aside by the decision rendered by the Supreme Court on December 20, 1945, in Herras Teehankee vs. Rovira, supra, as having been rendered "with grave abuse of discretion." This manifestation of defiant disobedience and contempt to a legal decision of duly constituted authority, such as the Supreme Court, should not, lest we expose ourselves to be tatooed with the stigma of judicial flanerie or accessorial condescension, be allowed to pass unnoticed and without our irrevocable reproof and our sternest objurgation if we have to avoid in our judiciary, in our government, in our country, the reign of official insubordination and the enthroning of irresponsible anarchy. Indiscipline and lawlessness in any bracket of government are not better than lawlessness and terrorism in any segment of the community. The contagion of official bad example inevitably attacks the social consciousness and moral equilibrium of the ruck. The evil effects of the resulting demoralization, of unpredictable extent, shall then be hard to check and cure. Courts and judges will be recreant to their official duty it, by actual practice, they fail to make an example of respectful subordination of higher organs, agencies, and functionaries in the official hierarchy, of official discipline in the exercise of their functions, of obedience to and respect for final and irrevocable order of superior authority. Their official conduct is a mirror for the people to look upon. They are among the first who should set the example of respect to law and authority. Public officials cannot trample upon the Constitution, the laws and constituted authority without producing alarm and disturbance in all social strata. The crystalline surface of the pool of public conscience cannot remain unrippled at the impact of the fall of the stone of public scandal thrown into it. Such effects must be, in the interest of social order, avoided at all costs. The survival of human society demands it. Among the three powers of governments, the judiciary is in the material sense the weakest. Although its function in society is as noble and important as the ones en trusted to the legislative and executive powers, and there is none loftier that our mind may conceive or to which the most ambitious heart may aspire, it needs the active and positive help of other agencies to make it effective. Congress must provide for the adequate budget, and the executive power the necessary force to make effective the orders and decisions of tribunals. To compensate for the comparative physical weakness of the judicial power, it is necessary that judges and courts should acquire the unbounded moral force which springs from the general faith and confidence of government and people alike. That moral force, although intangible, immeasurable and imponderable, is as effective as any cosmic force, if not more. We hold as an axiom that spiritual energy is stronger than atomic energy, the mighty basic force of material universe. But to obtain and retain public faith and confidence, it is necessary that courts and judges should show by their acts that they are actually e ntitled to such faith and confidence. Recalcitrant insubordination and indiscipline are not the means. On the contrary, they will only provoke public suspicion and distrust, if not popular wrath and condemnation. Let all remember that showing of insubordination, indiscipline, obstinate disobedience on the part of any public officer, sooner or later, will rebound multiplied against the guilty one. Then, it will be too late to complain and deplore that his own authority is ignored, despised, or trampled upon. Such faults become veritable boomerang which might cause disaster to the very
functionaries who dare to perpetrate them in utter defiance of higher authority. They need vigorous corrective measure, the least one a strong reprimand, to avoid their recurrence, by annihilating, obliterating, or neutralizing the first bacilli at the inception of such official infectious morbidity. We fell happy that our brethen had, at least, voted for the decision concerning the petitioner which permits us to concur in, although we cannot but regret that so much time and effort were lost in the past in fruitless attempts to attain justice, the one belatedly given now to petitioner. With a weaker heart, she would have accepted her former failures and defeats with the fatalistic submission shown by petitioner in Duran vs. Abad Santos , and justice would have been deprived of the belated opportunity of shining as lastly it did in this case. Never yielding to defeatist despair, we are convinced that the long and bitter travails and failures preluding the final success of petitioner, as all intense human experiences, will garner new sparkles to the wisdom treasured by our tribunals. Experience is the praecognitum of the dialectics of progress in human history. Hope and faith in the ultimate good are the driving forces behin d all endeavors towards an ideal. G.R. No. 111230 ENRIQUE T. GARCIA, ET AL., p etitioners, vs. COMMISSION ON ELECTIONS and SANGGUNIANG BAYAN OF MORONG, BATAAN, respondents. Alfonzo M. Cruz Law Offices for petitioners. Puno, J.:
The 1987 Constitution is borne of the conviction that people power can be trusted to check excesses of government. One of the means by which people power can be exercised is thru initiatives where local ordinances and resolutions can be enacted or repealed. An effort to trivialize the effectiveness of people's initiatives ought to be rejected. In its Pambayang Kapasyahan Blg. 10, Serye 1993, 1 the Sangguniang Bayan ng Morong, Bataan agreed to the inclusion of the municipality of Morong as part of the Subic Special Economic Zone in accord with Republic Act No. 7227. On May 24, 1993, petitioners filed a petition 2 with the Sangguniang Bayan of Morong to annul Pambayang Kapasyahan Blg. 10, Serye 1993. The petition states: I. Bawiin, nulipikahin at pawalang-bisa ang Pambayang Kapasyahan Blg. 10, Serye 1993 ng Sangguniang Bayan para sa paganib ng Morong sa SSEZ na walang kondisyon. II. Palitan ito ng isang Pambayang Kapasiyahan na aanib lamang ang Morong sa SSEZ kung ang mga sumusunod na kondisyones ay ipagkakaloob, ipatutupad at isasagawa para sa kapakanan at interes ng Morong at Bataan: (A). Ibalik sa Bataan ang "Virgin Forests" - isang bundok na hindi nagagalw at punong-puno ng malalaking punong-kahoy at iba'-ibang halaman. (B) Ihiwalay ang Grande Island sa SSEZ at ibalik ito sa Bataan. (K). Isama ang mga lupain ng Bataan na nakapaloob sa SBMA sa pagkukuenta ng salaping ipinagkakaloob ng pamahalaang national o "Internal Revenue Allotment" (IRA) sa Morong, Hermosa at sa Lalawigan. (D). Payagang magtatag rin ng sariling "special economic zones" ang bawat bayan ng Morong, Hermosa at Dinalupihan. (E). Ibase sa laki ng kanya-kanyang lupa ang pamamahagi ng kikitain ng SBMA. (G). Ibase rin ang alokasyon ng pagbibigay ng trabaho sa laki ng nasabing mga lupa. (H). Pabayaang bukas ang pinto ng SBMA na nasa Morong ng 24 na oras at bukod dito sa magbukas pa ng pinto sa hangganan naman ng Morong at Hermosa upang magkaroon ng pagkakataong umunlad rin ang mga nasabing bayan, pati na rin ng iba pang bayan ng Bataan. (I). Tapusin ang pagkokonkreto ng mga daang Morong-Tala-Orani at Morong-Tasig-Dinalupihan para sa kabutihan ng mga taga-Bataan at tuloy makatulong sa pangangalaga ng mga kabundukan. (J). Magkaroon ng sapat na representasyon sa pamunuan ng SBMA ang Morong, Hermosa at Bataan. The municipality of Morong did not take any action on the petition within thirty (30) days after its submission. Petitioners then resorted to their power of initiative under the Local Government Code of 1991. 3 They started to solicit the required number of signatures 4 to cause the repeal of said resolution. Unknown to the petitioners, however, the Honorable Edilberto M. de Leon, Vice Mayor and Presiding Officer of the Sangguniang Bayan ng Morong, wrote a letter dated June 11, 1993 to the Executive Director of COMELEC requesting the denial of " . . . the petition for a local initiative and/or referendum because the exercise will just promote divisiveness, counter productive and futility." 5 We quote the letter, viz: The Executive Director COMELEC Intramuros, Metro Manila S i r: In view of the petition filed by a group of proponents headed by Gov. Enrique T. Garcia, relative to the conduct of a local initiative and/or referendum for the annulment of Pambayang Kapasyahan Blg. 10, Serye 1993, may we respectfully request to deny the petition referred thereto considering the issues raised by the proponents were favorably acted upon and endorsed to Congress and other government agencies by the Sangguniang Bayan of Morong. For your information and guidance, we are enumerating hereunder the issues raised by the petitioners with the corresponding actions undertaken by the Sangguniang Bayan of Morong, to wit: ISSUES RAISED BY PROPONENTS I. Pawalang-bisa ang Pambayang Kapasyahan Blg. 10, Serye ng taong 1993. II. Palitan ito ng isang Kapasyahang Pag-anib sa SSEZ kung: a) Ibabalik sa Morong ang pag-aaring Grande Island, kabundukan at Naval Reservation; b) Ibase sa aring Lupa ng LGU ang kikitain at mapapasok na manggagawa nila sa SSEZ; c) Isama ang nasabing lupa sa pagkukuwenta ng "IRA" ng Morong, Hermosa at Dinalupihan; d) Makapagtatag ng sariling "economic zones" ang Morong, Hermosa at Dinalupihan; e) Pabayaan bukas ang pinto ng Morong patungong SSEZ at magbukas ng dalawang (2) pinto pa; (f) Konkretohin ang daang Morong papunta sa Orani at Dinalupihan; g) Pumili ng SBMA Chairman na taga-ibang lugar. ACTIONS UNDERTAKEN BY THE SB OF MORONG 1. By virtue of R.A. 7227, otherwise known as the Bases Conversion Development Act of 1992, all actions of LGU's correlating on the above issues are merely recommendatory in nature when such provisions were already embodied in the statute. 2. Corollary to the notion, the Sangguniang Bayan of Morong passed and approved Pambayang Kapasyahan Blg. 18, Serye 1993, requesting Congress of the Philippines to amend certain provisions of R.A. 7227, wherein it reasserted its position embodied
in Pambayan Kapasyahan Blg. 08 and Blg. 12, Serye ng taong 1992, (Attached and marked as Annex "A:) which tackled the same issues raised by the petitioners particularly items a), b), c), e), and g). 3. Item d) is already acted upon by BCDA Chairman Arsenio Bartolome III in its letter to His Excellency President Fidel V. Ramos, dated May 7, 1993 (Attached and marked as Annex "B") with clarifying letter from BCDA Vice-Chairman Rogelio L. Singson regarding lands on Mabayo and Minanga dated June 3, 1993 that only lands inside the perimeter fence are envisioned to be part of SBMA. 4. Item f), President Ramos in his marginal note over the letter request of Morong, Bataan Mayor Bienvenido L. Vicedo, the Sangguniang Bayan and Congressman Payumo, when the Resolution of Concurrence to SBMA was submitted last April 6, 1993, order the priority implementation of completion of Morong-Dinalupihan (Tasik-Road) Project, including the MorongPoblacion-Mabayo Road to DPWH. (Attached and marked as Annex "C"). Based on the foregoing facts, the Sangguniang Bayan of Morong had accommodated the clamor of the petitioners in accordance with its limited powers over the issues. However, the Sangguniang Bayan of Morong cannot afford to wait for amendments by Congress of R.A. 7227 that will perhaps drag for several months or years, thereby delaying the development of Morong, Bataan. Henceforth, we respectfully reiterate our request to deny the petition for a local initiative and/or referendum because the exercise will just promote divisiveness, counter productive and futility. Thank you and more power. Very truly yours, (SGD.) EDILBERTO M. DE LEON Mun. Vice Mayor/Presiding Officer In its session of July 6, 1993, the COMELEC en banc resolved to deny the petition for local initiative on the ground that its subject is "merely a resolution (pambayang kapasyahan) and not an ordinance." 6 On July 13, 1993, the COMELEC en banc further resolved to direct Provincial Election Supervisor, Atty. Benjamin N. Casiano, to hold action on the authentication of signatures being gathered by petitioners. 7 These COMELEC resolutions are sought to be set aside in the petition at bench. The petition makes the following submissions: 5. This is a petition for certiorari and mandamus . 5.01 For certiorari, conformably to Sec. 7, Art. IX of the Constitution, to set aside Comelec Resolution Nos. 93-1676 and 93-1623 (Annexes "E" and "H") insofar as it disallowed the initiation of a local initiative to annul PAMBAYANG KAPASYAHAN BLG. 10, SERYE 1993 including the gathering and authentication of the required number of signatures in support thereof. 5.01.1 As an administrative agency, respondent Comelec is bound to observe due process in the conduct of its proceedings. Here, the subject resolutions, Annexes "E" and "H", were issued ex parte and without affording petitioners and the other proponents of the initiative the opportunity to be heard thereon. More importantly, these resolutions and/or directives were issued with grave abuse of discretion. A Sangguniang Bayan resolution being an act of the aforementioned local legislative assembly is undoubtedly a proper subject of initiative. (Sec. 32, Art. VI, Constitution) 5.02 For mandamus , pursuant to Sec. 3, Rule 65, Rules of Court, to command the respondent Comelec to schedule f orthwith the continuation of the signing of the petition, and should the required number of signatures be obtained, set a date for the initiative within forty-five (45) days thereof. 5.02.1 Respondent Comelec's authority in the matter of local initiative is merely ministerial. It is duty-bound to supervise the gathering of signatures in support of the petition and to set the date of the initiative once the required number of signatures are obtained. If the required number of signatures is obtained, the Comelec shall then set a date for the initiative during which the proposition shall be submitted to the registered voters in the local government unit concerned for their approval within sixty (60) days from the date of certification by the Comelec, as provided in subsection (g) hereof, in case of provinces and cities, forty-five (45) days in case of municipalities, and thirty (30) days in case of barangays. The initiative shall then be held on the date set, after which the results thereof shall be certified and proclaimed by the Comelec. (Sec. 22, par. (h) R.A. 7160. Respondent COMELEC opposed the petition. Through the Solicitor General, i t contends that under the Local Government Code of 1991, a resolution cannot be the subject of a local initiative. The same stance is assumed by the respondent Sangguniang Bayan of Morong. 8 We grant the petition. The case at bench is of transcendental significance because it involves an issue of first impression - delineating the extent of the all important original power of the people to legislate. Father Bernas explains that "in republican systems, there are generally two kinds of legislative power, original and derivative. Original legislative power is possessed by the sovereign people. Derivative legislative power is that which has been delegated by the sovereign people to legislative bodies and is subordinate to the original power of the people." 9 Our constitutional odyssey shows that up until 1987, our people have not directly exercised legislative power, both the constituent power to amend or revise the Constitution or the power to enact ordinary laws. Section 1, Article VI of the 1935 Constitution delegated legislative power to Congress, thus "the legislative power shall be vested in a Congress of the Philippines, which shall consist of a Senate and a House of Representatives." Similarly, section 1, Article VIII of the 1973 Constitution, as amended, provided that "the Legislative power shall be vested in a Batasang Pambansa." 10 Implicit in the set up was the trust of the people in Congress to enact laws for their benefit. So total was their trust that the people did not reserve for themselves the same power to make or repeal laws. The omission was to prove unfortunate. In the 70's and until the EDSA revolution, the legislature failed the expectations of the people especially when former President Marcos wielded lawmaking powers under Amendment No. 6 of the 1973 Constitution. Laws which could have bridled the nation's downslide from democracy to authoritarianism to anarchy never saw the light of day. In February 1986, the people took a direct hand in the determination of their destiny. They toppled down the government of former President Marcos in a historic bloodless revolution. The Constitution was rewritten to embody the lessons of their sad experience. One of the lessons is the folly of completely surrendering the power to make laws to the legislature. The result, in the perceptive words of Father Bernas, is that the new Constitution became "less trusting of public officials than the American Constitution." 11 For the first time in 1987, the system of people's initiative was thus installed in our fundamental law. To be sure, it was a late awakening. As early as 1898, the state of South Dakota has adopted initiative and referendum in its constitution 12 and many states have followed suit. 13 In any event, the framers of our 1987 Constitution realized the value of initiative and referendum as an ultimate weapon of the people to negate government malfeasance and misfeasance and they put in place an overarching system. Thus, thru an initiative, the people were given the power to amend the Constitution itself. Sec. 2 of Art. XVII provides: "Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein." Likewise, thru an initiative, the people were also endowed with the power to enact or reject any act or law by congress or local legislative body. Sections 1 and 32 of Article VI provide:
Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives except to the extent reserved to the people by the provisions on initiative and referendum. xxx xxx xxx Sec. 32. The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions ther efrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters thereto. The COMELEC was also empowered to enforce and administer all laws and regulations relative to the conduct of an initiative and referendum. 14 Worthwhile noting is the scope of coverage of an initiative or referendum as delineated by section 32 Art. VI of the Constitution, supra - any act or law passed by Congress or local legislative body. In due time, Congress respondent to the mandate of the Constitution. It enacted laws to put into operation the constitutionalized concept of initiative and referendum. On August 4, 1989, it approved Republic Act No. 6735 entitled "An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor." Liberally borrowed from American laws, 15 R.A. No. 6735, among others, spelled out the requirements 16 for the exercise of the power of initiative and referendum, the conduct of national initiative and referendum; 17 procedure of local initiative and referendum; 18 and their limitations. 19 Then came Republic Act No. 7160, otherwise known as The Local Government Code of 1991. Chapter 2, Title XI, Book I of the Code governed the conduct of local initiative and referendum. In light of this legal backdrop, the essential issue to be resolved in the case at bench is whether Pambayang Kapasyahan Blg. 10, serye 1993 of the Sangguniang Bayan of Morong, Bataan is the proper subject of an initiative. Respondents take the negative stance as they contend that under the Local Government Code of 1991 only an ordinance can be the subject of initiative. They rely on section 120, Chapter 2, Title XI, Book I of the Local Government Code of 1991 which provides: "Local Initiative Defined. Local initiative is the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance." We reject respondents' narrow and literal reading of the above provision for it will collide with the Constitution and will subvert the intent of the lawmakers in enacting the provisions of the Local Government Code of 1991 on initiative and referendum. The Constitution clearly includes not only ordinances but resolutions as appropriate subjects of a local initiative. Section 32 of Article VI provides in luminous language: "The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress, or local legislative body . . ." An act includes a resolution. Black 20 defines an act as "an expression of will or purpose . . . it may denote something done . . . as a legislature, including not merely physical acts, but also decrees, edicts, laws, judgments, resolves, awards, and determinations . . . ." I t is basic that a law should be con strued in harmony with and not in violation of the constitution. 21 In line with this postulate, we held in In Re Guarina that "if there is doubt or uncertainty as to the meaning of the legislative, if the words or provisions are obscure, or if the enactment is fairly susceptible of two or more constructions, that interpretation will be adopted which will avoid the effect of unconstitutionality, even though it may be necessary, for this purpose, to disregard the more usual or apparent import of the language used." 22 The constitutional command to include acts (i.e., resolutions) as appropriate subjects of initiative was implemented by Congress when it enacted Republic Act No. 6735entitled "An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor." Thus, its section 3(a) expressly includes resolutions as subjects of i nitiatives on local legislations, viz: Sec. 3. Definition of Terms - For purposes of this Act, the following terms shall mean; (a) "Initiative" is the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose. There are three (3) systems of initiative, namely: a.1. Initiative on the Constitution which refers to a petition proposing amendments to the Constitution. a.2. Initiative on statutes which refers to a petition proposing to enact a national legislation; and a.3. Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution, or ordinance. (Emphasis ours) Similarly, its section 16 states: "Limitations Upon Local Legislative Bodies - Any proposition on ordinance or resolution approved through the system of initiative and referendum as herein provided shall not be repealed, modified or amended, by the local legislative body concerned within six (6) months from the date therefrom . . . ." On January 16, 1991, the COMELEC also promulgated its Resolution No. 2300 entitled "In Re Rules and Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum, on National and Local Laws." It likewise recognized resolutions as proper subjects of initiatives. Section 5, Article I of its Rules states: "Scope of power of initiative - The power of initiative may be exercised to amend the Constitution, or to enact a national legislation, a regional, provincial, city, municipal or barangay law, resolution or ordi nance." There can hardly be any doubt that when Congress enacted Republic Act No. 6735 it intend resolutions to be proper subjects of local initiatives. The debates confirm this intent. We quote some of the interpellations when the Conference Committee Report on the disagreeing provisions between Senate Bill No. 17 and House Bill No. 21505 were being considered in the House of Representatives, viz: THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is recognized. MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers to the system providing for the initiative ad referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum and the House of Representatives correctly provided for initiative and referendum on the Constitution and on national legislation. I move that we approve the consolidated bill. MR. ALBANO. Mr. Speaker. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader? MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. What does the sponsor say? MR. ROCO. Willingly, Mr. Speaker. THE SPEAKER PRO TEMPORE. The Gentleman will please proceed. MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate ve rsion there was a provision for local initiative and referendum, whereas the House version has none. MR. ROCO. In fact, the Senate version provided purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation. MR. ALBANO. Is it our understanding, therefore, that the two provisions were incorporated.? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation.
MR. ROCO. That is correct. MR. ALBANO. And provincial as well as municipal resolutions? MR. ROCO. Down to barangay, Mr. Speaker. MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution whereby it mandates this Congress to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution? MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987 Constitution, it is every five years. 23 Contrary to the submission of the respondents, the subsequent enactment of the local Government Code of 1991 which also dealt with local initiative did not change the scope of its coverage. More specifically, the Code did not limit the coverage of local initiatives to ordinances alone. Section 120, Chapter 2, Title IX Book I of the Code cited by respondents merely defines the concept of local initiative as the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance. It does not, however, deal with the subjects or matters that can be taken up in a local initiative. It is section 124 of the same Code which does. It states: Sec. 124. Limitations on Local Initiatives. (a) The power of local initiative shall not be exercised more than once a year. (b) Initiative shall extend only to subjects or matters which are within the legal powers of the Sanggunians to enact. xxx xxx xxx This provision clearly does not limit the application of local initiatives to ordinances, but to all "subjects or matters which are within the legal powers of the Sanggunians to enact," which undoubtedly includes resolutions. This interpretation is supported by Section 125 of the same Code which provides: "Limitations upon Sanggunians. - Any proposition or ordinance approved through the system of initiative and referendum as herein provided shall not be repealed, modified or amended by the sanggunian concerned within six (6) months from the date of the approval thereof . . . ." Certainly, the inclusion of the word proposition is inconsistent with respondents' thesis that only ordinances can be the subject of local initiatives. The principal author of the Local Government Code of 1991, former Senator Aquilino Pimentel, espouses the same view. In his commentaries on the said law, he wrote, viz: 24 4. Subject Matter Of Initiative. All sorts of measures may be the subject of direct initiative for as long as these are within the competence of the Sanggunian to enact. In California, for example, direct initiatives were proposed to enact a fishing control bill, to regulate the practice of chiropractors, to levy a special tax to secure a new library, to grant a franchise to a railroad company, and to prevent discrimination in the sale of housing and similar bills. Direct initiative on the local lever may, therefore, cover all kinds of measures provided that these are within the power of the local Sanggunians to enact, subject of course to the other requisites enumerated in the Section. 5. Form of Initiative. Regarding the form of the measure, the section speaks only of "ordinance," although the measure may be contained in a resolution. If the registered voters can propose ordinances, why are they not allowed to propose resolutions too? Moreover, the wording of Sec. 125, below, which deals not only with ordinances but with "any proposition" implies the inclusion of resolutions. The discussion hereunder will also show support for the conclusion that resolutions may indeed be the subject of local initiative. We note that respondents do not give any reason why resolutions should not be the subject of a local initiative. In truth, the reason lies in the well known distinction between a resolution and an ordinance - i.e., that a resolution is used whenever the legislature wishes to express an opinion which is to have only a temporary effect while an ordinance is intended to permanently direct and control matters applying to persons or things in general. 25 Thus, resolutions are not normally subject to referendum for it may destroy the efficiency necessary to the successful administration of the business affairs of a city. 26 In the case at bench, however, it can not be argued that the subject matter of the resolution of the municipality of Morong merely temporarily affects the people of Morong for it directs a permanent rule of conduct or government. The inclusion of Morong as part of the Subic Special Economic Zone has far reaching implications in the governance of its people. This is apparent from a reading of section 12 of Republic Act No. 7227 entitled "An Act Accelerating the Conversion of Military Reservations Into Other Productive Uses, Creating the Bases Conversion and Development Authority For This Purpose, Providing Funds Therefor and For Other Purposes." t o wit: Sec. 12. Subic Special Economic Zone. - Subject to the concurrence by resolution of the sangguniang panlungsod of the City of Olongapo and the sangguniang bayan of the Municipalities of Subic, Morong and Hermosa, there is hereby created a Special Economic and Free-port Zone consisting of the City of Olongapo and the Municipality of Subic, Province of Zambales, the lands occupied by the Subic Naval Base and its contiguous extensions as embraced, covered, and defined by the 1947 Military Bases Agreement between the Philippines and the United States of America as amended, and within the territorial jurisdiction of the Municipalities of Morong and Hermosa, Province of Bataan, hereinafter referred to a as the Subic Special Economic Zone whose metes and bounds shall be delineated in a proclamation to be issued by the President of the Philippines. Within thirty (30) days after the approval of this Act, each local government unit shall submit its resolution of concurrence to join the Subic Special Economic Zone to the Office of the President. Thereafter, the President of the Philippines shall issue a proclamation defining the metes and bounds of the zone as provided herein. The abovementioned zone shall be subject to the following policies: (a) Within the framework and subject to the mandate and limitations of the Constitution and the pertinent provisions of the Local Government Code, the Subic Special Economic Zone shall be developed into a self-sustaining, industrial, commercial, financial and investment center to generate employment opportunities in and around the zone and to attract and promote productive foreign investments; (b) The Subic Special Economic Zone shall be operated and managed as a separate customs territory ensuring free flow or movement of goods and capital within, i nto a exported out of the Subic Special Economic Zone, as well as provide incentives such as tax and duty-free importations of raw material, capital and equipment. However, exportations or removal of goods from the territory of the Subic Special Economic Zone to the other parts of the Philippine territory shall be subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax laws of the Philippines: (c) The provision of existing laws, rules and regulations to the contrary notwithstanding, no taxes, local and national, shall be imposed within the Subic Special Economic Zone. In lieu of paying taxes, three percent (3%) of the of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone shall be remitted to the National Government one percent (1%) each to the local government units affected by the declaration of the zone in proportion to their population area, and other factors. In addition, there is hereby established a development fund of one percent (1%) of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone to be utilized for the development of municipalities outside the City of Olongapo and the Municipality of Subic, and other municipalities contiguous to the base areas. In case of conflict between national and local laws with respect to tax exe mption privileges in the Subic Special Economic Zone, the same shall be resolved in favor of the latter; (d) No exchange control policy shall be applied and free markets for foreign exchange, gold, securities and futures shall be allowed and maintained in the Subic Special Economic Zone; (e) The Central Bank, through the Monetary Board, shall supervise and regulate the operations of banks and other financial institutions within the Subic Special Economic Zone; (f) Banking and finance shall be liberalized with the establishment of foreign currency depository units of local commercial banks and offshore banking units of foreign banks with minimum Central Bank regulation; (g) Any investor within the Subic Special Economic Zone whose continuing investment shall not be less than Two hundred fifty thousand dollars ($250,000), his/her spouse and dependent children under twenty-one (21) years of age, shall be granted permanent resident status within the Subic Special Economic Zone. They shall have freedom of ingress and egress to and from the Subic Special Economic Zone
without any need of special authorization from the Bureau of Immigration and Deportation. The Subic Bay Metropolitan Authority referred to in Section 13 of this Act may also issue working visas renewable every two (2) years to foreign executives and other aliens possessing highly-technical skills which no Filipino within the Subic Special Economic Zone possesses, as certified by the Department of Labor and Employment. The names of aliens granted permanent residence status and working visas by the Subic Bay Metropolitan Authority shall be reported to the Bureau of Immigration and Deportation within thirty (30) days after issuance thereof. (h) The defense of the zone and the security of its perimeters shall be the responsibility of the National Government in coordination with the Subic Bay Metropolitan Authority. The Subic Bay Metropolitan Authority shall provide and establish its own internal security and fire fighting forces; and (i) Except as herein provided, the local government units comprising the Subic Special Economic Zone shall retain their basic autonomy and identity. The cities shall be governed by their respective charters and the municipalities shall operate and function in accordance with Republic Act No. 7160, otherwise known as the Local Government Code of 1991. In relation thereto, section 14 of the same law provides: Sec. 14. Relationship with the Conversion Authority and the Local Government Units. - (a) The provisions of existing laws, rules and regulations to the contrary notwithstanding, the Subic Authority shall exercise administrative powers, rule-making and disbursement of funds over the Subic Special Economic Zone in conformity with the oversight function of the Conversion Authority. (b) In case of conflict between the Subic Authority and the local government units concerned on matters affecting the Subic Special Economic zone other than defense and security, the decision of the Subic Authority shall prevail. Considering the lasting changes that will be wrought in the social, political, and economic existence of the people of Moron g by the inclusion of their municipality in the Subic Special Economic Zone, it is but logical to hear their voice on the matter via an initiative. It is not material that the decision of the municipality of Morong for the inclusion came in the form of a resolution for what matters is its enduring effect on the welfare of the people of Morong. Finally, it cannot be gained that petitioners were denied due process. They were not furnished a copy of the letter-petition of Vice Mayor Edilberto M. de Leon to the respondent COMELEC praying for denial of their petition for a local initiative on Pambayang Kapasyahan Blg. 10, Serye 1993. Worse, respondent COMELEC granted the petition without affording petitioners any fair opportunity to oppose it. This procedural lapse is fatal for at stake is not an ordinary right but the sanctity of the sovereignty of the people, their original power to legislate through the process of initiative. Ours is the duty to listen and the obligation to obey the voice of the people. It could well be the only force that could foil the mushrooming abuses in government. IN VIEW WHEREOF, the petition is GRANTED and COMELEC Resolution 93 -1623 dated July 6, 1993 and Resolution 931676 dated July 13, 1993 are ANNULLED and SET ASIDE. No costs. SO ORDERED. Narvasa, C.J., Cruz, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Vitug, Kapunan and Mendoza, JJ., concur.
Feliciano, Padilla, Bidin, JJ., are on leave G.R. No. 120265 September 18, 1995 AGAPITO A. AQUINO, petitioner, vs. COMMISSION ON ELECTIONS, MOVE MAKATI, MATEO BEDON and JUANITO ICARO, respondents.
KAPUNAN, J.: The sanctity of the people's will must be observed at all times if our nascent democracy is to be preserved. In any challenge having the effect of reversing a democratic choice, expressed through the ballot, this Court should be ever so vigilant in finding solutions which would give effect to the will of the majority, for sound public policy dictates that all elective offices are filled by those who have received the highest number of votes cast in an election. When a challenge to a winning candidate's qualifications however becomes inevitable, the ineligibility ought to be so noxious to the Constitution that giving effect to the apparent will of the people would ultimately do harm to our democratic institutions. On March 20, 1995, petitioner Agapito A. Aquino filed his Certificate of Candidacy for the position of Representative for the new Second Legislative District of Makati City. Among others, Aquino provided the followin g information in his certificate of candidacy, viz:. (7) RESIDENCE (Complete Address): 284 AMAPOLA COR. ADALLA STS., P ALM VILLAGE, MAKATI. xxx xxx xxx (8) RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION: ______ Years and 10 Months. xxx xxx xxx THAT I AM ELIGIBLE for said Office; That I will support and defend the Constitution of the Republic of the Philippines and will maintain true faith and allegiance thereto; That I will obey the law, rules and decrees promulgated by the duly constituted authorities; That the obligation imposed to such is assumed voluntarily, without mental reservation or purpose of evasion, and that the facts therein are true to the best of my knowledge. 1 On April 24, 1995, Move Makati, a duly registered political party, and Mateo Bedon, Chairman of the LAKAS-NUCD-UMDP of Barangay Cembo, Makati City, filed a petition to disqualify Agapito A. Aquino 2 on the ground that the latter lacked the residence qualification as a candidate for congressman which, under Section 6, Art. VI of the 1987 the Constitution, should be for a period not less than one (1) year immediately preceding the May 8, 1995 elections. The petition was docketed as SPA No. 95113 and was assigned to the Second Division of the Commission on Elections (COMELEC). On April 25, 1995, a day after said petition for disqualification was filed, petitioner filed another c ertificate of candidacy amending the certificate dated March 20, 1995. This time, petitioner stated in Item 8 of his cer tificate that he had resided in the constituency where he sought to be elected for one (l) year and thirteen (13) days. 3 On May 2, 1995, petitioner filed his Answer dated April 29, 1995 praying for the dismissal of the disqualification case. 4 On the same day, May 2, 1995, a hearing was conducted by the COMELEC wherein petitioner testified and presented in evidence, among others, his Affidavit dated May 2, 1995, 5 lease contract between petitioner and Leonor Feliciano dated April 1, 1994, 6 Affidavit of Leonor Feliciano dated April 28,1995 7 and Affidavit of Daniel Galamay dated April 28, 1995. 8 After hearing of the petition for disqualification, the Second Division of the COMELEC promulgated a Resolution dated May 6, 1995, the decretal portion of which reads: WHEREFORE, in view of the foregoing, this Commission (Second Division) RESOLVES to DISMISS the instant: petition for Disqualification against respondent AGAPITO AQUINO and declares him ELIGIBLE to run for the Office of Representative in the Second Legislative District of Makati City. SO ORDERED. 9 On May 7, 1995, Move Makati and Mateo Bedon filed a Motion for Reconsideration of the May 6, 1995 resolution with the COMELEC en banc.
Meanwhile, on May 8, 1995, elections were held. In Makati City where thre e (3) candidates vied for the congressional seat in the Second District, petitioner garnered thirty eight thousand five hundred forty seven (38,547) votes as against another candidate, Agusto Syjuco, who obtained thirty five thousand nine hundred ten (35,910) votes. 10 On May 10, 1995, private respondents Move Makati and Bedon filed an Urgent Motion Ad Cautelum to Suspend Proclamation of petitioner. Thereafter, they filed an Omnibus Motion for Reconsideration of the COMELEC's Second Division resolution dated May 6, 1995 and a 2nd Urgent Motion Ad Cautelum to Suspend Proclamation of petitioner. On May 15, 1995, COMELEC en banc issued an Order suspending petitioner's proclamation. The dispositive portion of the order reads: WHEREFORE, pursuant to the provisions of Section 6 of Republic Act No. 6646, the Board of Canvassers of the City of Makati is hereby directed to complete the canvassing of e lection returns of the Second District of Makati, but to suspend the proclamation of respondent Agapito A. Aquino should he obtain the winning number of votes for the position of Representative of the Second District of the City of Makati, until the motion for reconsideration filed by the petitioners on May 7, 1995, shall have been resolved by the Commission. The Executive Director, this Commission, is direc ted to cause the immediate implementation of this Order. The Clerk of Court of the Commission is likewise directed to inform the parties by the fastest means available of this Order, and to calendar the hearing of the Motion for Reconsideration on May 17, 1995, at 10:00 in the morning, PICC Press Center, Pasay City. SO ORDERED. 11 On May 16, 1995, petitioner filed his Comment/Opposition with urgent motion to lift order of suspension of proclamation. On June 1, 1995, petitioner filed a "Motion to File Supplemental Memorandum and Motion to Resolve Urgent Motion to Resolve Motion to Lift Suspension of Proclamation" wherein he manifested his intention to raise, among others, the i ssue of whether of not the determination of the qualifications of petitioner after the e lections is lodged exclusively in the House of Representatives Electoral Tribunal pursuant to Section 17, Article VI of the 1987 Constitution. Resolving petitioner's motion to lift suspension of his proclamation, the COMELEC en banc issued an Order on June 2, 1995, the decretal portion thereof residing: Pursuant to the said provisions and considering the attendant circumstances of the case, the Commission RESOLVED to proceed with the promulgation but to suspend its rules, to accept the filing of the aforesaid motion, and to allow the parties to be heard thereon because the issue of jurisdiction now before the Commission has to be studied with more reflection and judiciousness. 12 On the same day, June 2, 1995, the COMELEC en banc issued a Resolution reversing the resolution of the Second Division dated May 6, 1995. The fallo reads as follows: WHEREFORE, in view of the foregoing, petitioners' Motion for Reconsideration of the Resolution of the Second Division, promulgated on May 6, 1995, is GRANTED. Respondent Agapito A. Aquino is declared ineligible and thus disqualified as a candidate for the Office of Representative of the Second Legislative District of Makati City in the May 8, 1995 elections, for lack of the constitutional qualification of residence. Consequently, the order of suspension of proclamation of the respondent should he obtain the winning number of votes, issued by this Commission on May 15, 1995 is now made permanent. Upon the finality of this Resolution, the Board of Canvassers of the City of Makati shall immediately reconvene and, on the basis of the completed canvass of election returns, determine the winner out of the remaining qualified candidates, who shall be immediately be proclaimed. SO ORDERED. 13 Hence, the instant Petition for Certiorari 14 assailing the orders dated May 15, 1995 and June 2, 1995, as well as the resolution dated June 2, 1995 issued by the COMELEC en banc. Petitioner's raises the following err ors for consideration, to wit: A THE COMELEC HAS NO JURISDICTION TO DETERMINE AND ADJUDGE THE DISQUALIFICATION ISSUE I NVOLVING CONGRESSIONAL CANDIDATES AFTER THE MAY 8, 1995 ELECTIONS, SUCH DETERMINATION BEING RESERVED TO AND LODGE EXCLUSIVELY WITH THE HOUSE OF REPRESENTATIVE ELECTORAL TRIBUN AL B ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, SAID JURISDICTION CEASED IN THE INSTANT CASE AFTER THE ELECTIONS, AND THE REMEDY/IES AVAILABLE TO THE ADVERSE PARTIES LIE/S I N ANOTHER FORUM WHICH, IT IS SUBMITTED, IS THE HRET CONSISTENT WITH SECTION 17, ARTICLE VI OF THE 1987 CONSTITUTION C THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT PROCEEDED TO PROMULGATE ITS QUESTIONED DECISION (ANNEX "C", PETITION) DESPITE IT OWN RECOGNITION THAT A THRESHOLD ISSUE OF JURISDICTION HAS TO BE JUDICIOUSLY REVIEWED AGAIN, ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION, AND SERIOUS ERROR IN DIRECTING WITHOUT NOTICE THE SUSPENSION OF THE PROCLAMATION OF THE PETITIONER AS THE WINNING CONGRESSION AL CANDIDATE AND DESPITE THE MINISTERIAL NATURE OF SUCH DUTY TO PROCLAIM (PENDING THE FINALITY OF THE DISQUALIFICATION CASE AGAINST THE PETITIONER) IF ONLY NOT TO THWART THE PEOPLE'S WILL. D THE COMELEC'S FINDING OF NON-COMPLIANCE WITH THE RESIDENCY REQUIREMENT OF ONE YEAR AGAINST THE PETITIONER IS CONTRARY TO EVIDENCE AND TO APPLICABLE LAWS AND JURISPRUDENCE. E IN ANY CASE, THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF CONGRESSI ONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE ONLY EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTI ON AND BARELY FOUR MONTHS IN THE CASE OF PETITIONER'S DISTRICT IN M AKATI OF CONGRESSIONAL. F THE COMELEC COMMITTED SERIOUS ERROR AMOUNTING TO LACK OF JURISDICTION WHEN IT ORDERED THE BOARD OF CANVASSERS TO "DETERMINE AND PROCLAIM THE WINNER OUT OF THE REMAINING QUALIFIED CANDIDATES" AFTER THE ERRONEOUS DISQUALIFICATION OF YOUR PETITIONER IN THAT SUCH DIRECTIVE IS I N TOTAL DISREGARD OF THE WELL SETTLED DOCTRINE TH AT A SECOND PLACE CANDIDATE OR PERSON WHO WAS REPUDIATED BY THE ELECTORATE IS A LOSER AND CANNOT BE PROCLAIMED AS SUBSTITUTE WINNER. 15 I In his first three assignments of error, petitioner vigorously contends that after the May 8, 1995 elections, the COMELEC lost its jurisdiction over the question of petitioner's qualifications to run for member of the House of Representatives. He claims that jurisdiction over the petition for disqualification is exclusively lodged with the House of Representatives Electoral Tribunal (HRET). Given the yet unresolved question of jurisdiction, petitioner avers that the COMELEC committed serious error and grave abuse of
discretion in directing the suspension of his proclamation as the winning ca ndidate in the Second Congressional District of Makati City. We disagree. Petitioner conveniently confuses the distinction between an unproclaimed candidate to the House of Representatives and a member of the same. Obtaining the highest number of votes i n an election does not automatically vest the position in the winning candidate. Section 17 of Article VI of the 1987 Constitution reads: The Senate and the House of Representatives shall have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualifications of their respective Members. Under the above-stated provision, the electoral tribunal clearly assumes jurisdiction over all contests relative to the election, returns and qualifications of candidates for either the Senate or the House only when the latter become members of either the Senate or the House of Representatives. A candidate who has not been proclaimed 16 and who has not taken his oath of office cannot be said to be a member of the House of Representatives subject to Section. 17 of the Constitution. While the proclamation of a winning candidate in an election is ministerial, B.P. 881 in conjunction with Sec 6 of R.A. 6646 allows suspension of proclamation under circumstances mentioned therein. Thus, petitioner's contention that "after the conduct of the election and (petitioner) has been established the winner of the ele ctoral exercise from the moment of election, the COMELEC is automatically divested of authority to pass upon the question of qualification" finds no basis, because even after the elections the COMELEC is empowered by Section 6 (in relation to Section 7) of R.A. 6646 to continue to hear and decide questions relati ng to qualifications of candidates Section 6 states: Sec. 6. Effect of Disqualification Case. — Any candidate, who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. Under the above-quoted provision, not only is a disqualification case against a candidate allowed to continue after the election (and does not oust the COMELEC of its jurisdiction), but his obtaining the highest number of votes will not result in the sus pension or termination of the proceedings against him when the evidence of guilt is strong. While the phrase "when the evidence of guilt is strong" seems to suggest that the provisions of Section 6 ought to be applicable only to disqualification cases under Section 68 of the Omnibus Election Code, Section 7 of R.A. 6646 allows the application of the provisions of Section 6 to cases involving disqualification based on ineligibility under Section 78 of B.P. 881. S ection 7 states: Sec. 7. Petition to Deny Due Course or to Cancel a Certificate of Candidacy. — The procedure hereinabove provided shall apply to petition to deny due course to or cancel a certificate of candidacy based on Sec. 78 of Batas Pambansa 881. II We agree with COMELEC's contention that in order that petitioner could qualify as a candidate for Representative of the Second District of Makati City the latter "must prove that he has established not just residence but domicile of choice. 17 The Constitution requires that a person seeking election to the House of Representatives should be a resident of the district in which he seeks election for a period of not less than one (l) year prior to the e lections. 18Residence, for election law purposes, has a settled meaning in our jurisdiction. In Co v. Electoral Tribunal of the House of Representatives 19 this Court held that the term "residence" has always been understood as synonymous with "domicile" not only under the previous Constitutions but also under the 1987 Constitution. The Court there held: 20 The deliberations of the Constitutional Commission reveal that the meaning of residence vis-a-visthe qualifications of a candidate for Congress continues to remain the same as that of domicile, to wit: Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there was an attempt to require residence in the place not less than one year immediately preceding the day of elections. So my question is: What is the Committee's concept of domicile or constructive residence? Mr. Davide: Madame President, insofar as the regular members of the National Assembly are concerned, the proposed section merely provides, among others, and a resident thereof', that is, in the district, for a period of not less than one year preceding the day of the election. This was in effect lifted from the 1973 Constitution, the interpretation given to it was domicile (emphasis ours) Records of the 1987 Constitutional Convention, Vol. II, July 22, 1986, p. 87). xxx xxx xxx Mrs. Rosario Braid: The next question is on section 7, page 2. I think Commissioner Nolledo has raised the same point that "resident" has been i nterpreted at times as a matter of intention rather than actual residence. Mr. De Los Reyes: Domicile. Ms. Rosario Braid: Yes, So, would the gentlemen consider at the proper time to go back to actual residence rather than mere intention to reside? Mr. De los Reyes: But We might encounter some difficulty especially considering that the provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we have to stick to the original concept that it should be by domicile and not physical and actual residence. (Records of the 1987 Constitutional Commission, Vol. II, July 22, 1986, p. 110). The framers of the Constitution adhered to the earlier definition given to the word "residence" which regarded it as having the same meaning as domicile. Clearly, the place "where a party actually or constructively has his permanent home," 21 where he, no matter where he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election law. The manifest purpose of this deviation from the usual conceptions of residency in law as explained in Gallego vs. Vera at 22 i s "to exclude strangers or newcomers unfamiliar with the conditions and needs of the community" from taking advantage of favorable circumstances existing in that community for electoral gain. While there is nothing wrong with the practice of establishing residence in a given area for meeting election law requirements, this nonetheless defeats the essence of representation, which is to place through the assent of voters those most cognizant and sensitive to the needs of a particular district, if a candidate falls short of the period of residency mandated by law for him to qualify. That purpose could be obviously best met by individuals who have ei ther had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice. It would, therefore, be imperative for this Court to inquire into the threshold question as to whether or not petitioner actually was a resident for a period of one year in the
area now encompassed by the Second Legislative District of M akati at the time of his election or whether or not he was domiciled in the same. As found by the COMELEC en banc petitioner in his Certificate of Candidacy for the May 11, 1992 elections, indicated not only that he was a resident of San Jose, Concepcion, Tarlac in 1992 but that he was a resident of the same for 52 years immediately preceding that election. 23 At the time, his certificate indicated that he was also a registered voter of the same district. 24 His birth certificate places Concepcion, Tarlac as the birthplace of both of his parents Benigno and Aurora. 25 Thus, from data furnished by petitioner himself to the COMELEC at various times during his political career, what stands consistently clear a nd unassailable is that this domicile of origin of record up to the time of filing of his most recent cer tificate of candidacy for the 1995 elections was Concepcion, Tarlac. Petitioner's alleged connection with the Second District of Makati City i s an alleged lease agreement of condominium unit in the area. As the COMELEC, in its disputed Resolution noted: The intention not to establish a permanent home in Makati City is evident in his leasing a condominium unit instead of buying one. While a lease contract maybe indicative of respondent's intention to reside in Makati City it does not engender the kind of permanency required to prove abandonment of one's original domicile especially since, by its terms, it is only for a period of two (2) years, and respondent Aquino himself testified that his intention was really for only one (l) year because he has other "residences" in Manila or Quezon City. 26 While property ownership is not and should never be an indicia of the right to vote or to be voted upon, the fact that petitioner himself claims that he has other residences in Metro Manila coupled with the short length of time he claims to be a resident of the condominium unit in Makati (and the fact, of his stated domicile in Tarlac) "indicate that the sole purpose of (petitioner) in transferring his physical residence" 27 is not to acquire's new residence or domicile "but only to qualify as a candidate for Representative of the Second District of Makati City." 28 The absence of clear and positive proof showing a successful abandonment of domicile under the conditions stated above, the lack of identification — sentimental, actual or otherwise — with the area, and the suspicious circumstances under which the lease agreement was effected all belie petitioner's claim of residency for the period required by the Constitution, in the Second District of Makati. As the COMELEC en banc emphatically pointed out: [T]he lease agreement was executed mainly to support the one year residence requirement as a qualification for a candidate of Representative, by establishing a commencement date of his residence. If a perfectly valid lease agreement cannot, by itself establish; a domicile of choice, this particular lease agreement cannot do better. 29 Moreover, his assertion that he has transferred his domicile from Tarlac to Makati is a bare assertion which is hardly supported by the facts in the case at bench. Domicile of origin is not easily lost. To successfully effect a change of domicile, petitioner must prove an actual removal or an actual change of domicile; a bona fideintention of abandoning the former place of residence and establishing a new one and definite acts which correspond with the purpose. 30 These requirements are hardly met by the evidence adduced in support of petitioner's claims of a change of domicile from Tarlac to the Second District of Makati. In the absence of clear and positive proof, the domicile of origin be deemed to continue requirements are hardly met by the evidence adduced in support of petitioner's claims of a change of domicile from Tarlac to the Second District of Makati. In t he absence of clear and positive proof, the domicile of origin should be deemed to continue. Finally, petitioner's submission that it would be legally impossible to i mpose the one year residency requirement in a newly created political district is specious and lacks basis in logic. A new political district is not created out of thin air. It is carved out from part of a real and existing geographic area, in this case the old Municipality of Makati. That people actually lived or were domiciled in the area encompassed by the new Se cond District cannot be denied. Modern-day carpetbaggers cannot be allowed take advantage of the creation of new political districts by suddenly transplanting themselves in such new districts, prejudicing their genuine residents in the process of taking advantage of existing conditions in these areas. I t will be noted, as COMELEC did in its assailed resolution, that petitioner was disqualified from running in the Senate because of the constitutional two-term limit, and had to shop around for a place where he could run for public office. Nothing wrong with that, but he must first prove with reasonable certainty that he has effected a change of residence for election law purposes for the period required by law. This he has not effectively done. III The next issue here is whether or not the COMELEC erred in i ssuing it Order instructing the Board of Canvassers of Makati City to proclaim as winner the candidate receiving the next higher number of votes. The answer must be in the negative. To contend that Syjuco should be proclaimed because he was the "first" among the qualified candidates in the May 8, 1995 elections is to misconstrue the nature of the democratic electoral process and the sociological and psychological underpinnings behind voters' preferences. The result suggested by private re spondent would lead not only to our reversing the doctrines firmly entrenched in the two cases of Labo vs. Comelec 31 but also to a massive disenfranchisement of the thousands of voters who cast their vote in favor of a candidate they believed could be validly voted for during the elections. Had petitioner been disqualified before the elections, the choice, moreover, would have been different. The votes for Aquino given the acrimony which attended the campaign, would not have automatically gone to second placer Syjuco. The nature of the playing fie ld would have substantially changed. To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under such circumstances. In these cases, the pendulum of judicial opinion in our country has swung from one end to the other. In the early case of Topacio v. Paredes. 32 we declared as valid, votes cast in favor of a disqualified, ineligilble or dead candidate provided the people who voted for such candidate believed in good faith that at the time of the elections said candidate was either qualified, elig ible or alive. The votes cast in favor of a disqualified, ineligible or dead candidate who obtained the next higher number of votes cannot be proclaimed as winner. According to this Court i n the said case, "there is not, strictly speaking, a contest, that wreath of victory cannot be transferred from an ineligible c andidate to any other candidate when the sole question is the eligibility of the one receiving the plurality of the legally cast ballots." Then in Ticson v. Comelec, 33 this Court held that votes cast in favor of a non-candidate in view of his unlawful change of party affiliation (which was then a ground for disqualification) cannot be considered in the canvassing of e lection returns and the votes fall into the category of invalid and nonexistent votes because a disqualified candidate is no candidate at all and is not a candidate in the eyes of the law. As a result, this Court upheld the proclamation of the only candidate left in the disputed position. In Geronimo v. Ramos 34 we reiterated our ruling in Topacio v. Paredes that the candidate who lost in an election cannot be proclaimed the winner in the event the candidate who ran for the portion is ineligible. We held in Geronimo: [I]t would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the
representative of a constituency, the majority of which have positively declared through their ballots th at they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the elections. (20 Corpus Juris 2nd, S 243, p. 676.) However, in Santos v. Comelec 35 we made a turnabout from our previous ruling in Geronimo v. Ramos and pronounced that "votes cast for a disqualified candidate fall within the category of invalid or non-existent votes because a disqualified candidate is no candidate at all in the eyes of the law," reverting to our e arlier ruling in Ticson v. Comelec. In the more recent cases of Labo, Jr. v. Comelec 36 Abella v. Comelec; 37 and Benito v. Comelec, 38 this Court reiterated and upheld the ruling in Topacio v. Paredes and Geronimo v. Ramos to the effect that the ineligibility of a candidate receiving the next higher number of votes to be declared elected, and that a minority or defeated candidate cannot be declared elected to the office. In these cases, we put emphasis on our pronouncement in Geronimo v.Ramos that: The fact that a candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declare d the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in sincere belief that candidate was alive, qualified, or eligible; they should not be treated as stray, void or meaningless. Synthesizing these rulings we declared in the latest case of Labo, Jr. v. COMELEC that: 39 While Ortega may have garnered the second highest number of votes for the office of city mayor, the fact remains that he was not the choice of the sovereign will. Petitioner Labo was overwhelmingly voted by the electorate for the office of mayor in the belief that he was then qualified to serve the people of Baguio City and his subsequent disqualification does not make respondent Ortega the mayor-elect. This is the import of the recent case of Abella v. Comelec (201 SCRA 253 [1991]), wherein we held that: While it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed the fact remains that the local elections of Feb. 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes was counted and she obtained the highest number of votes. The net effect is that petitioner lost in the election. He was repudiated by the electorate. . . What matters is that in the event a candidate for an elected position who is voted for and who obtains the highest number of votes is disqualified for not possessing the eligibility, requirements at the time of the election as provided by law, the candidate who obtains the second highest number of votes for the same position cannot assume the vacated position. (Emphasis supplied). Our ruling in Abella applies squarely to the case at bar and we see no compelling reason to depart therefrom. Like Abella, petitioner Ortega lost in the election. He was repudiated by the electorate. He was obviously not the choice of the people of Baguio City. Thus, while respondent Ortega (G.R. No. 105111) originally filed a disqualification case with the Comelec (docketed as SPA-92-029) seeking to deny due course to petitioner's (Labo's) candidacy, the same did not deter the people of Baguio City from voting for petitioner Labo, who, by then, was allowed by the respondent Comelec to be voted upon, the resolution for his disqualification having yet to attain the degree of finality (Sec. 78, Omnibus Election Code). And in the earlier case of Labo v. Comelec. (supra), We held: Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason i s that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City. The latest ruling of the Court in this issue is Santos v. Commission on Election, (137 SCRA 740) decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a non candidate, were all disregarded as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then (Cuevas J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay, and Aquino, JJ., concurring) with three dissenting (Teehankee, acting C.J., Abad Santos and Melencio-Herrera) and another two reserving their votes (Plana and Gutierrez, Jr. ). One was on official leave (Fernando, C.J.) Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Santos (136 SCRA 435), which represents the more logical and democratic rule. Th at case, which reiterated the doctrine first announced in 1912 i n Topacio vs.Paredes (23 Phil. 238) was supported by ten members of the Court. . . . The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office. Indeed, this has been the rule in the United States since 1849 (State ex rel. Dunning v. Giles, 52 Am. Dec. 14 9). It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for the disqualified candidate should, in effect, be considered null and void. This would amount to disenfranchising the electorate in whom, sovereignty resides. At the r isk of being repetitious, the people of Baguio City opted to elect petitioner Labo bona fide without any intention to missapply their franchise, and in the honest belief that Labo was then qualified to be the person to whom they would entrust the exercise of the powers of the government. Unfortunately, petitioner Labo turned out to be disqualified and cannot assume the office. Whether or not the candidate whom the majority voted for can or cannot be installed, under no circumstances can a minority or defeated candidate be deemed el ected to the office. Surely, the 12,602 votes cast for petitioner Ortega is not a larger number than the 27,471 votes cast for petitioner L abo (as certified by the Election Registrar of Baguio City; rollo, p. 109; G.R. No. 105111). This, it bears repeating, expresses the more l ogical and democratic view. We cannot, in another shift of the pendulum, subscribe to the contention that the runner-up in an election in which the winner has been disqualified is actually the winner among the
remaining qualified candidates because this clearly represents a minority view supported only by a scattered number of obscure American state and English court decisions. 40 These decisions neglect the possibility that the runner-up, though obviously qualified, could receive votes so measly and insignificant i n number that the votes they receive would be tantamount to rejection. Theoretically, the "second placer" could receive just one vote. In such a case, it is absurd to proclaim the totally repudiated candidate as the voters' "choice." Moreover, even in instances where the votes received by the second placer may not be considered numerically insignificant, voters preferences are nonetheless so volatile and unpredictable that the result among qualified candidates, should the equation change because of the disqualification of an ineligible candidate, would not be self-evident. Absence of the apparent though ineligible winner among the choices could lead to a shifting of votes to candidates other than the second placer. By any mathematical formulation, the runner-up in an elec tion cannot be construed to have obtained a majority or plurality of votes c ast where an "ineligible" candidate has garnered either a majority or plurality of the votes. In fine, we are left with no choice but to affirm the COMELEC's conclusion declaring herein petitioner ineligible for the elective position of Representative of Makati City's Second District on the basis of respondent commission's finding that petitioner lacks the one year residence in the district mandated by the 1987 Constitution. A democratic government is necessarily a government of laws. In a republican government those laws are themselves ordained by the people. Through their representatives, they dictate the qualifications necessary for service in government positions. And as petitioner clearly lacks one of the essential qualifications for running for membership in the House of Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City would substitute for a requirement mandated by the fundamental law itself. WHEREFORE, premises considered, the instant petition is hereby DISMISSED. Our Order restraining respondent COMELEC from proclaiming the candidate garnering the next highest number of votes in the congressional elections for the Second District o f Makati City is made PERMANENT. SO ORDERED. Regalado, Melo, Puno and Hermosisima, Jr., JJ., concur. Feliciano, J., is on leave.
Separate Opinions PADILLA, J., concurring: I agree with the conclusion reached by the majority that petitioner Aquino has not shown by clear and convincing evidence that he had established his residence in the second district of Makati City for a period of not less than one (1) year prior to the 8 May 1995 elections. However, I do not fully subscribe to its proposition that petitioner's residence (in Makati) should be hi s "domicile of choice". Article VI, Section 6 of the Constitution provides that: No person shall be a member of the House of Representatives unless he is a natural-born citizen of the Philippines and on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election. (emphasis supplied). In G.R. No. 119976, Marcos vs. Comelec, I have maintained that the phrase "a resident thereof for a period of not less than one year" means actual and physical presence in the legislative district of the congressional candidate, and that said period of one year must be satisfied regardless of whether or not a person's residence or domicile coincides. To my mind, petitioner should be declared disqualified to run as representative in the 2nd district of Makati City in the 8 M ay 1995 elections not because he failed to prove his residence therein as his domicile of choice, but because he failed altogether to prove that he had actually and physically resided therein for a period of not less than one (1) year immediately preceding the 8 May 1995 elections. Noteworthy is the established fact before the Comelec that petitioner a dmits having maintained other residencesin Metro Manila apart from his leased condominium unit in Makati's 2nd district. 1 This clear admission made by petitioner against his interest weakens his argument that "where a party decides to transfer his legal residence so he can qualify for public office, he is free to do so." (see p. 20, Petition). Petitioner evidently wants to impress the Court that his other residences in Metro Manila could never have become his domicil e of choice because it never entered his mind and suddenly, seemingly not contented with these other residences, he rents a condominium unit in Makati, and calls it his domicile of choice — all these without adding clear and convincing evidence that he did actually live and reside in Makati for at least one year prior to 8 May 1995 — and that he no longer lived and resided in his other residences during said one year period. It follows, likewise, that the lease contract relied upon by petitioner, standing alone, established only the alleged date (April 25, 1994) of its due execution. Stated otherwise, the lease contract tells us that petitioner had been le asing a condominium unit in Makati City for more than a year prior to 8 May 1995, but it does not prove that petitioner actually and physically resided therein for the same period, in the light of his admission that he maintained other residences in Metro Manila. In light of petitioner's disqualification, the corrollary issue to be resolved is whether or not jurisdiction continued to be vested in the Comelec to order the Makati Board of Canvassers" to determine and proclaim the winner out of the re maining qualified candidates" after petitioner had been declared post 8 May 1995 as disqualified. I agree with the proposition advanced by the Solicitor General that sec. 6 of R.A. 6646 clearly provides that votes cast for a disqualified candidate shall not be counted, thus: Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. There can be no dispute that if a final judgment is rendered before the election, declaring a particular candidate as disqualified, such disqualified candidate shall not be voted for and votes cast f or him shall not be counted, thus posing no problem in proclaiming the candidate who receives the highest number of votes among the qualified candidates. But what about after the election? Sec. 6 appears categorical enough in stating: "if any reason" no final judgment of disqualification is rendered before the elections, and the c andidate facing disqualification is voted for and receives the winning number of votes, the Comelec or the Court is not ousted of its jurisdiction to hear and try the case up to final judgment, hence, the power to even suspend the proclamation of the erstwhile winning candidate when evidence of his guilt i s strong.
It thus appears clear that the law does not dichotomize the effect of a final judgment of disqualification in terms of time considerations. There is only one natural and logical effect: the disqualified candidate shall not be voted and, if voted, the votes cast for him shall not be counted. Ubi lex non distinguit nec nos distinguere debemus(where the law does not distinguish, we should not distinguish.) At this point, what I said in Marcos, supra, follows: What happens then when after the elections are over, one is declared disqualified? Then, votes cast for him "shall not be counted" and in legal contemplation, he no longer received the highest number of votes. It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply because a "winning candidate is disqualified," but that the law considers him as the candidate who had obtained the highest number of votes as a result of the votes cast for the disqualified candidate not being counted or considered. As this law clearly reflects the legislative policy on the matter, then there is no reason why this Court should not re-examine and consequently abandon the doctrine in the Jun Labo case. It has been stated that "the qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility" most especially when it is mandated by no less than the Constitution. Therefore the candidate who received the highest number of votes from among the qualified candidates, should be proclaimed ACCORDINGLY, I vote to DISMISS the petition. FRANCISCO, J., concurring and dissenting: I concur with the well written ponencia of my most esteemed colleague, Mr. Justice Kapunan. I wish, however, to express my views on some issues raised by the petitioner, viz., (1) jurisdiction over the disqualification suit, (2) domicile, (3) theory of legal impossibility, and (4) "second placer rule". Petitioner emphatically maintains that only the House of Representatives Electoral Tribunal (HRET) can declare his disqualification, especially after the elections. To bolster this stand, the cases of Co v. HRET, 199 SCRA 692 (1991); Robles v. HRET, 181 SCRA 780 (1990); Lazatin v. HRET, 168 SCRA 391 (1988); and Lachica v.Yap, 25 SCRA 140 (1968), have been cited as supporting authorities. To my mind, this position is untenable. Section 17 of Article VI of the 1987 Constitution is clear and unambiguous that HRET jurisdiction applies only to the members of the House of Representatives. The operative acts necessary for an electoral candidate's rightful assumption of the office for which he ran are his proclamation and his taking an oath of office. Petitioner cannot in anyway be considered as a member of the House of Representatives for the purpose of divesting the C ommission on Elections of jurisdiction to declare his disqualification and invoking instead HRET's jurisdiction, it indubitably appearing that he has yet to be proclaimed, much less has he taken an oath of office. Clearly, petitioner's r eliance on the aforecited cases which when perused involved Congressional members, is totally misplaced, if not wholly inapplicable. That the jurisdiction conferred upon HRET extends only to Congressional members is further established by judicial notice of HRET Rules of procedure, 1 and HRET decisions 2consistently holding that the proclamation the essential requisite vesting jurisdiction on the HRET. Moreover, a perusal of the records shows that the question on COMELEC's jurisdiction is now barred by estoppel. It i s to be n oted that in his May 2, 1995 Answer, as well as in his Memorandum and Supplemental Memorandum filed before the COMELEC's Second Division, petitioner never assailed COMELEC's lacks of jurisdiction to rule on his qualification. On the contrary, he asked that the disqualification suit against him be dismissed on the following grounds: that it was filed outside the reglementary period; that the one year residence requirement of the 1987 Constitution is inapplicable due to the recent conversion of the municipality of Makati into a city under R.A. No. 7854; that he committed a simple inadvertence in filing up his certific ate of candidacy; that the proper procedure to attack his qualification is by a quo warranto proceeding; that he had actually and physically resided in Makati for more than a year; and for lack of merit, the case should be outrightly dismissed. In a hearing conducted by the COMELEC on May 2, 1995, petitioner even submitted his evidence (e.g. affidavits, amended certificate of candidacy, copy of the lease contract) to prove that he is qualified for the position. Subsequently, on May 16, 1995, in response to the COMELEC En Banc's May 15, 1995 Order suspending the proclamation of the winner, petitioner filed his Comment/Opposition with Urgent Motion To Lift Order of Suspension of Proclamation asking for the lifting of the C OMELEC's order of suspension. On May 19, 1995, petitioner again filed a Memorandum and averred that the recent conversion of Makati i nto a city made the one -year residence requirement inapplicable; that he resided in Makati for more than a year; thatquo warranto is the right remedy to question his qualification. In passing, petitioner also alleged that the issue on his qualification should be "properly" ventilated in a full-dress hearing before the HRET, albeit praying for the dismissal of the motion for reconsideration for utter lack of merit (and not for lack of jurisdiction), and for lifting the suspension of his proclamation. It was only on June 01, 1995, in his Motion to File Supplemental Memorandum and Urgent Motion to Resolve Motion to Lift Suspension of Proclamation, when the petitioner raised COMELEC's alleged lack of jurisdiction to resolve the question on his qualification. Clearly then, petitioner has actively participated in the proceedings both before the COMELEC's Second Division and the COMELEC En Banc asking therein affirmative reliefs. The settled rule is that a party who objects to the jurisdiction of the court and alleges at the same time any non-jurisdictional ground for dismissing the action is deemed to have submitted himself to the jurisdiction of the court. 3 Where a party voluntary submits to the jurisdiction of the court and thereafter loses on the merits, he may not thereafter be heard to say that the court had no jurisdiction. 4 In Jimenez v.Macaraig, 5 the Court, citing Crisostomo v. Court of Appeals, 32 SCRA 54, 60 (1970), elaborated on the rationale for this doctrine in this wise: The petitioners, to borrow the language of Mr. Justice Bautista Angelo (People vs. Archilla, G.R. No. L -15632, February 28, 1961, 1 SCRA 699, 700-701), cannot adopt a posture of double-dealing without running afoul of the doctrine of estoppel. The principle of estoppel is in the interest of a sound administration of the laws. It should deter those who are disposed to trifle with the courts by taking inconsistent positions contrary to the elem entary principles of right dealing and good faith (People v. Acierto, 92 Phil. 534, 541, [1953]). 6 It is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief to afterwards deny that same jurisdiction to escape an adverse decision. 7Perforce, petitioner's asseveration that the COMELEC has no jurisdiction to rule on his qualification must fail. Petitioner insists that domicile is a matter of personal intention. Thus, petition asserts that if he decides to transfer his legal residence so he can qualify for public office then he is entirely free to do so. Thus argument to hold water, must be supported by a clear and convincing proofs that petitioner has effectively abandoned his fo rmer domicile and that his intention is not doubtful. Indeed, domicile once established is considered to continue and will not be deemed lost until a new one is established (Co v. Electoral Tribunal House of Representatives, 199 SCRA 692, 711 [1991]). Petitioner from childhood until his last election as senator has consistently maintained Concepcion, Tarlac, as his domicile. He moved to Amapola Street, Palm Village, Makati, and thereafter claimed the same to be his new domicile. This claim, however, is dismally unsupported by the records. The lease contract entered into by petitioner for a period of two years on the third floor condominium unit in Palm Village, Makati, in my view, does not prove his intent to abandon his domicile of origin. The intention to establish domicile must be an intention to remain indefinitely or permanently in the new place. 8 This element is lacking in this instance. Worse, public respondent
Commission even found that "respondent Aquino himself testified that his intention was really for only one (1) year because he has other 'residences' in Manila or in Quezon City ([citing] TSN, May 2, 1995, p. 92)". 9 Noting that petitioner is already barred from running for senator due to the constitutional consecutive two-term limit, his search for a place where he could further and continue his political career and sudden transfer thereto make his intent suspect. The best test of intention to establish legal residence comes from one's acts and not by mere declarations alone. 10 To acquire, or effect a change of domicile, the intention must be bonafide and unequivocal (28 C.J.S. §11). Petitioner, in my view, miserably failed to show a bonafide and unequivocal intention to effect the change of his domicile. The theory of legal impossibility is advanced to justify non-compliance with the constitutional qualification on residency. Petitioner explains his theory in this wise: . . . THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE ONLY EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION AND BARELY FOUR MONTHS IN THE CASE OF PETITIONER'S DISTRICT IN MAKATI. 11 Apparently, this theory is an offshoot of Republic Act. No. 7854, an act converting the municipality of Makati into a hi ghly urbanized city. This law enacted on January 2, 1995, e stablished a second Congressional district in Makati in which petitioner ran as a Congressional candidate. Since the second district, according to petitioner, is barely four (4) months old then the one (1) year residence qualification provided by the Constitution is inapplicable. Petitioner's acts, however, as borne by the records, belie his own theory. Originally, he placed in his certificate of candidacy an entry of ten (10) months residence in Makati. Petitioner then had it amended to one (1) year and thirteen (13) days to correct what claims as a mere inadvertent mistake. I doubt the sincerity of this representation. If petitioner is indeed persuaded by his own theory, the ten months residence he initially wrote would have more than sufficiently qualified him to run in the barely four-month old Makati district. The amendment only reveals the true intent of petitioner to comply with one year constitutional requirement for residence, adding an e xtra thirteen (13) days full measure. Petitioner apparently wanted to argue one way (theory of legal impossibility), but at the same time played it safe in the other (the constitutional one year residence requirement). And that is not all. I f we were to adhere to petitioner's theory of legal impossibility, then residents in that district shorn of the constitutional six months residence requirement for prospective voters (Article V, Section 1 of the 1987 Constitution) would have certainly qualified to vote. That would have legitimized the entry and electoral exercise of flying voters — one of the historic nemeses of a clean and honest election. Furthermore, to subscribe to petitioner's contention that the constitutional qualification of candidates should be brushed aside in view of the enactment of R.A. No. 7854 will indubitably violate the manner and procedure for the amendment or revision of the constitution outlined under Article XVIII of the 1987 Constitution. A legislative enactment, it has to be emphasized, cannot render nugatory the constitution. The constitution is superior to a statute. It is the fundamental and organic law of the land to which every statute must conform and harmonize. Finally, it has been contended that a second place candidate cannot be proclaimed a substitute winner. I find the proposition quite unacceptable. A disqualified "candidate" is not a candidate and the votes which may have been c ast in his favor a re nothing but stray votes of no legal consequence. A disqualified person like the petitioner receives no vote or zero vote. In short, no-candidate-no vote. Petitioner had therefore no right, in fact and in law, to c laim first place for he has nothing to base his right. The legislative intent is clear as provided by R.A. 6646, Section 6, in that votes cast for a disqualified candidate shall not be counted as they are considered stray (Section 211, Rule 24, Omnibus Election Code). It is only from the ranks of qualified candidates can one be chosen as first placer and not from without. Necessarily, petitioner, a disqualified candidate, cannot be a first placer as he claims himself to be. To count the votes for a disqualified candidate would, in my view, disenfranchise voters who voted for a qualified candidate. Legitimate votes cast for a qualified candidate should not be penalized alongside a disqualified candidate. With this in mind, the other qualified candidate who garnered the highest number of votes shoul d be proclaimed the duly elected representative of the district. I feel that the Labo doctrine ought to be abandoned. I therefore vote to deny the petition and to lift the temporary restraining order issued by the Court dated June 6, 1995. DAVIDE, JR., J., dissenting: In sustaining the COMELEC's acts of suspending the proclamation of petitioner Agapito A. Aquino and of proceeding to hear the disqualification case against him, the majority opinion relies on Section 6 of R.A. No. 6646 which it claims to be applicable by virtue of Section 7 thereof to petitions to deny due course to or cancel a certificate of candidacy under Section 78 of the Omnibus Election Code (B.P. Blg. 881). I disagree. In the first place, the petition to disqualify the petitioner in SPA No. 95-113 is not a petition to deny due course to or cancel a certificate of candidacy under Section 78, which reads: Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. — A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any personexclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. (emphasis supplied) Nowhere in the petition in SPA No. 95-113 is it alleged by the private respondents that a material representation contained in the petitioner's certificate of candidacy is false. What is being attacked therein is the petitioner's lack of the one-year residence qualification in the new Second Legislative District of Makati City where he sought to he elected for the office of Congressman. The rule governing disqualification cases on the ground of i neligibility, which is also invoked by the private respondents, is Rule 25 of the COMELEC Rules of Procedure, as amended on 15 February 1993. The amendment allows the, filing of a petition to disqualify a candidate on the ground that he does not possess all the qualifications provided for by the Constitution or by e xisting laws. In its original form, the rule only applied to petitions for disqualification based on the commission of any act declared by law to be a ground for disqualification. The rule as thus amended now reads as follows: Rule 25 — Disqualification of Candidates Sec. 1. Grounds for Disqualification. — Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate. Sec. 2. Who May File Petition for Disqualification. — Any citizen of voting age, or duly registered political party, organization or coalition of political parties may file with the Law Department of the Commission a petition to disqualify a candidate on grounds provided by law. Sec. 3. Period to File Petition. — The petition shall be filed any day after the last day for filing of certificates of candidacy but not later than the date of proclamation. Sec. 4. Summary Proceeding. — The petition shall be heard summarily after due notice.
Sec. 5. Effect of Petition if Unresolved Before Completion of Canvass. — If the petition, for reasons beyond the control of the Commission, cannot be decided before the completion of the canvass, the votes cast for the respondent may be included in the counting and in the canvassing; however, if the evidence of guilt is strong, his proclamation shall be suspended notwithstanding the fact that he received the winning number of votes in such election. The underscored portion is the amendment to Rule 25, which the COMELEC must have deemed necessary to fill up a procedural hiatus in cases of disqualifications based on other grounds in the light of this Court's interpretation in Loong vs. Commission on Elections (216 SCRA 760 [1992]) that Rule 25 refers only to disqualifications under Sections 12 and 68 of the Omnibus Election Code. This Court explicitly stated therein as follows: We do not agree with private respondent Ututalum's contention that the petition for disqualification, as in the case at bar, may be filed at any time after the last day for filing a certificate of candidacy but not later than the date of proclamation, applying Section 3, Rule 25 of the Comelec Rules of Procedure. Rule 25 of the Comelec Rules of Procedure refers to Disqualification of Candidates; and Section 1 of said rule provides that any candidate who commits any act declared by law to be a ground for disqualification maybe disqualified from continuing as a candidate. The grounds for disqualification as expressed in Sections 12 and 68 of the Code, are the following: Sec. 12. Disqualification. — Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. Sec. 63 DisquaIifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision of 4 competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. The petition filed by private respondent Ututalum with the respondent Comelec to disqualify petitioner Loong on the ground that the latter made a false representation in his certificate of candidacy as to his age, clearly does not fall under the grounds of disqualification as provided for in Rule 25 but is expressly covered by Rule 23 of the Comelec Rules of Procedure governing petitions to cancel cer tificate of candidacy. Moreover, Section 3, Rule 25 which allows the filing of the petition at any time after the last day for the filing of certificates of candidacy but not later than the date of proclamation, is merely a procedural rule issued by respondent Commission which, although a constitutional body, has no legislative powers. Thus, it can not supersede Section 78 of the Omnibus Election Code which is a legislative enactment. Second, even if we assume for the sake of argument that the petition in SPA No. 95-113 fall under Section 78 of the Omnibus Election Code, still Section 6 of R.A. No. 6646 cannot be applied by virtue of Section 7 thereof. Sections 6 and 7 reads: Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. Sec. 71 Petition to Deny Due Course to or Cancel a Certificate of Candidacy. — The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881. The "procedure hereinabove provided" mentioned in Section 7 cannot be construed to refer to Section 6 whichdoes not provide for a procedure but for the EFFECTS of disqualification cases. It can only refer to theprocedure provided in Section 5 of the said Act on nuisance candidates which reads as follows: Sec. 5. Procedure in Cases of Nuisance Candidates. — A verified petition to declare a duly registered candidate as a nuisance candidate under Section 69 .f Batas Pambansa Blg. 881 shall be filed personally or through duly authorized representative with the Commission by any registered candidate for the same office within five (5) days from the last day for the filing of certificates of candidacy. Filing by mail shall not be allowed. (b) Within three (3) days from the filing of the petition, the Commission shall issue summons to the respondent candidate together with a copy of the petition and i ts enclosures, if any. (c) The respondent shall be given three (3) days from receipt of the summons within which to file his verified answer (not a motion to dismiss) to the petition, serving copy thereof upon the petitioner. Grounds for a motion to dismiss may be raised as affirmative defenses. (d) The Commission may designate any of its officials who are lawyers to hear the case and receive evidence. The proceeding shall be summary in nature. In lieu of oral testimonies, the parties may be required to submit position papers together with affidavits or counter-affidavits and other documentary evidence. The hearing officer shall immediately submit to the Commission his findings, reports, and recommendations within five (5) days from the completion of such submission of evidence. The Commission shall render its decision within five (5) days from receipt thereof. (e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy thereof by the parties, be final and executory unless stayed by the Supreme Court. (f) The Commission shall within twenty-four hours, through the fastest available means, disseminate its decision or the decision of the Supreme Court or the city or municipal election registrars, boards of election inspectors, and the general public in the political subdivision concerned. and which is the only procedure that precedes Section 7 of the said Act. Heretofore, no law provided for the procedure to govern cases under Section 78. Applying to such cases, through Section 7 of R.A. No. 6646, the procedure applicable to cases of nuisance candidates is prudent and wise , for both cases necessarily require that they be decided before the day of the election; hence, only summary proceedings thereon can adequately respond to the urgency of the matter.
Third, Section 6 merely supplements Section 72 of the Omnibus Election Code providing as follows: Sec. 72. Effects of disqualification cases and priority. — The Commission and the courts shall give priority to cases of disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption to office. by granting the COMELEC or the Court the authority to continue hearing the case and to suspend the proclamation if the evidence of guilt is strong. As observed by this Court in its majority "the phrase 'when the evidence of guilt is strong' seems to suggest that the provisions of Section 6 ought to be applicable only to disqualification cases under Section 68 of the Omnibus Election Code." Fourth, the amended Rule 25 of the COMELEC Rules of Procedure, which is the only rule governing petitions filed before election or proclamation for the disqualification of a candidate on the ground that he lacks the qualifications provided for by the Constitution or by law, does not, as can be gathered from Section 5 thereof, authorize the COME LEC to continue hearing the case after the election. Fifth, even assuming that the second sentence of Section 6 of R.A. to No. 6646 is applicable to disqualification cases based on the ground of lack of qualification, it cannot be applied to a case does not involve elective regional, provincial, and city officials, and where suspension of proclamation is not warranted because of the absence of strong evidence of guilt or ineligibility. In such a case the candidate sought to be disqualified but who obtains the highest number of votes has to be proclaimed. Once he is proclaimed, the COMELEC cannot continue with the case, and the remedy of the opponent is to contest the winning candidate's eligibility within ten days from proclamation in a quo warranto proceeding which is within the jurisdiction of the metropolitan or municipal trial courts, in the case of barangay officials; the regional trial courts, in case of municipal officials (Section 2(2), Article IX-C, Constitution; Section 253, paragraph 2, B.P. Blg. 881); the House of Representatives Electoral Tribunal, in the case of Congressmen; the Senate Electoral Tribunal, in the case of Senators (Section 17, Article VI , Constitution); and the Supreme Court en banc, in the case of the President or Vice-President (Section 4, Article VII, Constitution). If what is involved is an elective regional, provincial, or city official, and the case cannot be decided before the election, the COMELEC can, even after the proclamation of the candidate sought to be disqualified, p roceed with the case by treating it as a petition for quo warranto, since such a case properly pertains to the exclusive jurisdiction of the COMELEC (Section 2(2), Article IX-C, Constitution; Section 253, B.P. Blg. 881). But even granting for the sake of argument that Sections 6 and 7 of R.A. No. 6646, in relation to Section 78 of the Omnibus Election Code and the amended Rule 25 of the COMELEC Rules of Procedure, are applicable, the order of suspension of the petitioner's proclamation issued on 15 May 1995 is null and void for having been issued with grave abuse of discretion. What was before the COMELEC en banc at that stage was the decision of the Second Division of 6 May 1995 dismissing the petition to disqualify the petitioner and declaring him qualified for the position. That decision is a direct and positive rejection of any claim that the evidence of the petitioner's guilt is strong. Note that it was only on 2 June 1995, when the COMELEC en banc reversed the decision of the Second Division, that it was found that the evidence of the petitioner's ineligibility is strong. It would have been otherwise if the Second Division had disqualified the petitioner. Besides, at the time the questioned order was issued, there was no hearing yet on the private respondents' motions for the suspension of the petitioner's proclamation. In fact, in that order the COMELEC en bancadmitted that the said motions could not be resolved without hearing, thus: Pending the resolution of the petitioners' Motion for Reconsideration filed on May 7, 1995; Urgent Motion Ad Cautelam to Suspend Proclamation of Respondent (May 10, 1995) filed on May 10, 1995; and OMNIBUS MOTION (For Reconsideration of the Honorable Commission's [Second Division] Resolution dated May 6, 1995, and 2nd Urgent Motion Ad Cautelam to Suspend Proclamation of Respondent Aquino, which cannot be resolved without hearing, without violating the right of the respondent to due process. . . . For being void from the beginning; it is as if the order of 15 May 1995 had not existed and could not, therefore, be made permanent by the COMELEC en banc through its resolution of 2 June 1995 whose dispositive portion reads in part: [c]onsequently, the order of suspension of the respondent should he obtain the winning number of votes, issued by this Commission on 15 May 1995 is now made permanent." Absent a valid finding before the election or after the canvass of election returns that the evidence of the petitioner's guilt or ineligibility is strong, the COMELEC should not have suspended the proclamation of the petitioner. After the completion of the canvass the petitioner should have been proclaimed. This case then must be distinguished from that of Imelda Romualdez-Marcos vs. Commission on Elections, G.R. No. 119976, where the COMELEC en banc affirmed before the elections, or on 7 May 1995, the Second Division's resolution of 24 April 1995 disqualifying Mrs. Marcos. Accordingly, the order of 15 May 1995 and the resolution of 2 June 1995 of the COMELEC en banc must be annulled and set aside, and the COMELEC, through its City Board of Canvassers of Makati, must be ordered to immediately proclaim the petitioner, without prejudice to the right of his opponents to file a petition for quo warranto with the House of Representatives Electoral Tribunal, which is the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives (Section 17, Article VI, Constitution). In view of the foregoing, a disquisition on the merits of the ground for the petitioner's disqualification will no longer be proper. I vote to GRANT the instant petition, to ANNUL and SET ASIDE the challenged order and resolution of the Commission on Elections en banc, and to DIRECT the Board of Canvassers of Makati City to reconvene and proclaim the petitioner as the winning candidate, without prejudice on the part of any aggrieved party to file the appropriate action in the House of Representatives Electoral Tribunal. Romero and Bellosillo, JJ., concur. VITUG, J., separate opinion: I find what I would consider as the relevant issues in this petition as similar in almost all material respects to those obtaining in G.R. No. 119976 (Imelda Romualdez-Marcos vs. Commission on Elections and Cirilo Roy Montejo). Let me then here just reiterate what I have there said in my separate opinion. The case at bench deals with explicit Constitutional mandates. The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets up ideals and directions and rend er steady our strides hence. It only looks back so as to ensure that mistakes in the past are not repeated. A complaint transience of a constitution belittles its basic function and weakens its goals. A constitution may well become outdated by the realities of time. When it does, it must be changed but while it remains, we owe it respect and allegiance. Anarchy, open or subtle, has never
been, nor must it ever be, the answer to perceived transitory needs, let alone societal attitudes, or the Constitution might lose its very essence. Constitutional provisions must be taken to be mandatory in character unless, either by express statement or by necessary implication, a different intention is manifest (see Marcelino vs. Cruz, 121 SCRA 51). The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of the fundamental law. These provisions read: Sec. 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election. Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all laws and r egulations relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that, there being nothing said to the c ontrary, should include its authority to pass upon the qualification and disqualification prescribed by law of candidates to an elective office. Indeed, preproclamation controversies are expressly placed under the COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution). The matter before us specifically calls for the observance of the constitutional one-year re sidency requirement. This issue (whether or not there is here such compliance), to my mind, is basically a question of fact or at least inextricably linked to such determination. The findings and judgment of the COMELEC, in accordance with the long established rule and subject only to a number of exceptions under the basic heading of "grave abuse of discretion," are not reviewable by this Court. I do not find much need to do a complex exercise on what seems to me to be a plain matter. Generally, the term "resi dence" has a broader connotation that mean permanent (domicile), official (place where one's official duties may require him to stay) or temporary (the place where he sojourns during a considerable length of time). For Civil law purposes, i.e., as regards the exercise of civil rights and the fulfillment of civil obligations, the domicile of a natural person is the place of his habitual residence (see Article 50, Civil Code). In election cases, the controlling rule is that heretofore announced by this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus: In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term "residence" as used in the election law is synonymous with "domicile," which imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such i ntention." "Domicile" denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. . . . Residence thus acquired, however, may be lost by adopting another choice of domicile. In order, in turn, to acquire a new domicile by choice, there must concur (1) resi dence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary, and the residence at the place chosen for the new domicile must be actual. Using the above tests, I am not convinced that we can charge the COMELEC with having committed grave abuse of discretion in its assailed resolution. The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral Tribunal concerned begins. It signifies that the protestee must have theretofore been duly proclaimed and has since become a "member" of the Senate or the House of Representatives. The question can be asked on whether or not the proclamation of a candidate is just a ministerial function of the Commission on Elections dictated solely on the number of votes cast in an election exercise. I be lieve, it is not. A ministerial duty is an obligation the performance of which, being adequately defined, does not allow the use of further judgment or discretion. The COMELEC; in its particular case, is tasked with the full responsibility of ascertaining all the facts and conditions such as may be required by law before a proclamation is properly done. The Court, on its part, should, in my view at least, refrain from any undue encroachment on the ultimate exercise of authority by the Electoral Tribunals on matters which, by no less than a constitutional fiat, are explicitly within their exclusive domain . The nagging question, if it were otherwise, would be the effect of the Court's peremptory pronouncement on the ability of the Electoral Tribunal to later come up with its own judgment in a contest "relating to the el ection, returns and qualification" of its members. Prescinding from all the foregoing, I should like to next touch base on the applicability to this case of Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas Pambansa Blg. 881, each providing thusly: REPUBLIC ACT NO. 6646 xxx xxx xxx Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. BATAS PAMBANSA BLG. 881 xxx xxx xxx Sec. 72. Effects of disqualification cases and priority. — The Commission and the courts shall give priority to cases of disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final judgment before an election to be disqualified, and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption to office. I realize that in considering the significance of the law, it may be preferable to look for not so much the specific instances they ostensibly would cover as the principle they c learly convey. Thus, I will not scoff at the argument that it should be sound t o say that votes cast in favor of the disqualified candidate, whenever ultimately declared as such, should not be counted in his or her
favor and must accordingly be considered to be stray votes. The argument, nevertheless, is far outweighed by the rationale of the now prevailing doctrine first enunciated in the c ase of Topacio vs. Paredes (23 Phil. 238 (1912]) which, although later abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1 [1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most recently, Benito (235 SCRA 436 (1994]) rulings. Benito vs.Comelec was a unanimous decision penned by Justice Kapunan and concurred in by Chief Justice Narvasa, Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno, Vitug and Mendoza (Justices Cruz and Bellosillo were on official leave). For easy reference, let me quote from the first Labodecision: Finally, there is the question of whether or not the private respondent, who filed the quo warrantopetition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City. The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740) decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all disregard as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting (Teehankee, Acting C.J., Abad Santos and Melencio -Herrera, JJ.) and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.) Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio v.Paredes, (23 Phil. 238) was supported by ten members of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although one reserved his vote, (Makasiar, J.) another took no part, (Aquino, J.) and two others were on l eave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held: . . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 234, p. 676.) The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. (at pp. 20-21) Accordingly, I am constrained to vote for the dismissal of the petition. MENDOZA, J., separate opinion: For the reasons expressed in my separate opinion in the companion case. G.R. No. 119976. Imelda Romualdez-Marcos v. Commission on Elections. I am of the opinion that the Commission on Elections has no jurisdiction over petitions for disqualification of candidates based on alleged ineligibility for the office to which they seek election. The May 15, 1995 resolution of the COMELEC en banc, suspending he obtain the highest number of votes of Representative of the Second District of Makati, Metro Manila, purports to have been issued pursuant to §6 of R.A. No. 6646. This provision authorizes the COMELEC to order the suspension of the proclamation "whenever the evidence of his guilt is strong." As explained in my separate opinion in G.R. No. 119976, however, this provision refers to proceedings under §68 of the Omnibus Election Code which provides for the disqualification of candidates found guilty of using what in political parlance have been referred to as "guns goons or gold" to influence the outcome of elections. Since the disqualification of petitioner in this case was not sought on this ground, the application of §6 of R.A.. No. 6646 is clearly a grave abuse of discretion on the part of the COMELEC. Nor may the petition to disqualify petitioner in the COMELEC be justified under §78 of the OEC which authorizes the filing of a petition for the cancellation of certificates of c andidacy since such a petition maybe filed "exclusively on the ground that a material representation contained [in the certificate] as required under section 74 is false." There was no allegation that in stating in his certificate of candidacy that he is a resident of Amapola St., Palm Village, Guadalupe Viejo, Makati, Metro Manila, petitioner made any false representation. For this reason, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-113; that its proceedings in SPA No. 95113, including the questioned orders, are void; and that the qualifications of petitioner Agapito A. Aquino for the position of Representative of the Second District of the City of Makati may only be inquired into by the House of Representatives Electoral Tribunal. This conclusion makes it unnecessary for me to e xpress my view at this time on the question whether, in the event the candidate who obtained the highest number of votes is declared i neligible, the one who received the next highest number of votes is entitled to be declared the winner. Accordingly, I vote (1) to grant the petition in this case and (2) to annul the proceedings of the Commission on Elections in SPA No. 95-113, including the questioned orders, dated May 6, 1995. May 15, 1995, and the two orders both dated June 2, 1995, so far as they declare petitioner Agapito A. Aquino to be ineligible for the position of Representative of the Second District of the City of Makati and direct the City Board of Canvassers of Makati to determine and proclaim the winner out of the r emaining qualified candidates. Narvasa, J., concurs. Separate Opinions PADILLA, J., concurring: I agree with the conclusion reached by the majority that petitioner Aquino has not shown by clear and convincing evidence that he had established his residence in the second district of Makati City for a period of not less than one (1) year prior to the 8
May 1995 elections. However, I do not fully subscribe to its proposition that petitioner's residence (in Makati) should be his "domicile of choice". Article VI, Section 6 of the Constitution provides that: No person shall be a member of the House of Representatives unless he is a natural-born citizen of the Philippines and on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election. (emphasis supplied). In G.R. No. 119976, Marcos vs. Comelec, I have maintained that the phrase "a resident thereof for a period of not less than one year" means actual and physical presence in the legislative district of the congressional candidate, and that said period of one year must be satisfied regardless of whether or not a person's residence or domicile coincides. To my mind, petitioner should be declared disqualified to run as representative in the 2nd district of Makati City in the 8 May 1995 elections not because he failed to prove his residence therein as his domicile of choice, but because he failed altogether to prove that he had actually and physically resided therein for a period of not less than one (1) year immediately preceding the 8 May 1995 elections. Noteworthy is the established fact before the Comelec that petitioner admits having maintained other residencesin Metro Manila apart from his leased condominium unit in Makati's 2nd district. 1 This clear admission made by petitioner against his interest weakens his argument that "where a party decides to transfer his legal residence so he can qualify for public office, he is free to do so." (see p. 20, Petition). Petitioner evidently wants to impress the Court that his other residences in Metro Manila could never have become his domicil e of choice because it never entered his mind and suddenly, seemingly not contented with these other r esidences, he rents a condominium unit in Makati, and calls it his domicile of choice — all these without adding clear and convincing evidence that he did actually live and reside in Makati for at least one year prior to 8 May 1995 — and that he no longer lived and resided in his other residences during said one year period. It follows, likewise, that the lease contract relied upon by petitioner, standing alone, established only the alleged date (April 25, 1994) of its due execution. Stated otherwise, the lease contract tells us that petitioner had been leasing a condominium unit in Makati City for more than a year prior to 8 May 1995, but it does not prove that petitioner actually and physically resided therein for the same period, in the light of his admission that he maintained other residences in Metro Manila. In light of petitioner's disqualification, the corrollary issue to be resolved is whether or not jurisdiction continued to be vested in the Comelec to order the Makati Board of Canvassers" to determine and proclaim the winner out of the remaining qualified candidates" after petitioner had been declared post 8 May 1995 as disqualified. I agree with the proposition advanced by the Solicitor General that sec. 6 of R.A. 6646 clearly provides that votes cast for a disqualified candidate shall not be counted, thus: Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. There can be no dispute that if a final judgment is rendered before the election, declaring a particular candidate as disqualified, such disqualified candidate shall not be voted for and votes cast f or him shall not be counted, thus posing no problem in proclaiming the candidate who receives the highest number of votes among the qualified candidates. But what about after the election? Sec. 6 appears categorical enough in stating: "if any reason" no final judgment of disqualification is rendered before the elections, and the candidate facing disqualification is voted for and receives the winning number of votes, the Comelec or the Court is not ousted of its jurisdiction to hear and try the case up to final judgment, hence, the power to even suspend the proclamation of the erstwhile winning candidate when evidence of his guilt is strong. It thus appears clear that the law does not dichotomize the effect of a final judgment of disqualification in terms of time considerations. There is only one natural and logical effect: the disqualified candidate shall not be voted and, if voted, the votes cast for him shall not be counted. Ubi lex non distinguit nec nos distinguere debemus(where the law does not distinguish, we should not distinguish.) At this point, what I said in Marcos, supra, follows: What happens then when after the elections are over, one is declared disqualified? Then, votes cast for him "shall not be counted" and in legal contemplation, he no longer received the highest number of votes. It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply because a "winning candidate is disqualified," but that the law considers him as the candidate who had obtained the highest number of votes as a result of the votes cast for the disqualified candidate not being counted or considered. As this law clearly reflects the legislative policy on the matter, then there is no reason why this Court should not re-examine and consequently abandon the doctrine in the Jun Labo case. It has been stated that "the qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility" most especially when it is mandated by no less than the Constitution. Therefore the candidate who received the highest number of votes from among the qualified c andidates, should be proclaimed ACCORDINGLY, I vote to DISMISS the petition. FRANCISCO, J., concurring and dissenting: I concur with the well written ponencia of my most esteemed colleague, Mr. Justice Kapunan. I wish, however, to express my views on some issues raised by the petitioner, viz., (1) jurisdiction over the disqualification suit, (2) domicile, (3) theory of legal impossibility, and (4) "second placer rule". Petitioner emphatically maintains that only the House of Representatives Electoral Tribunal (HRET) can declare his disqualification, especially after the elections. To bolster this stand, the cases of Co v. HRET, 199 SCRA 692 (1991); Robles v. HRET, 181 SCRA 780 (1990); Lazatin v. HRET, 168 SCRA 391 (1988); and Lachica v.Yap, 25 SCRA 140 (1968), have been cited as supporting authorities. To my mind, this position is untenable. Section 17 of Article VI of the 1987 Constitution is clear and unambiguous that HRET jurisdiction applies only to the members of the House of Representatives. The operative acts necessary for an electoral candidate's rightful assumption of the office for which he ran are his proclamation and his taking an oath of office. Petitioner cannot in anyway be considered as a member of the House of Representatives for the purpose of divesting the Commission on Elections of jurisdiction to declare his disqualification and invoking instead HRET's jurisdiction, it indubitably appearing that he has yet to be proclaimed, much less has he taken an oath of office. Clearly, petitioner's reliance on the aforecited cases which
when perused involved Congressional members, is totally misplaced, if not wholly inapplicable. That the jurisdiction conferred upon HRET extends only to Congressional members is further established by judicial notice of HRET Rules of procedure, 1 and HRET decisions 2consistently holding that the proclamation the essential requisite vesting jurisdiction on the HRET. Moreover, a perusal of the records shows that the question on COMELEC's jurisdiction is now barred by estoppel. It is to be noted that in his May 2, 1995 Answer, as well as in his Memorandum and Supplemental Memorandum filed before the COMELEC's Second Division, petitioner never assailed COMELEC's lacks of jurisdiction to rule on his qualification. On the contrary, he asked that the disqualification suit against him be dismissed on the following grounds: that it was filed outside the reglementary period; that the one year residence requirement of the 1987 Constitution is inapplicable due to the recent conversion of the municipality of Makati into a city under R.A. No. 7854; that he committed a simple inadvertence in filing up his certificate of candidacy; that the proper procedure to attack his qualification is by a quo warranto proceeding; that he had actually and physically resided in Makati for more than a year; and for lack of merit, the case should be outrightly dismissed. In a hearing conducted by the COMELEC on May 2, 1995, petitioner even submitted his evidence (e.g. affidavits, amended certificate of candidacy, copy of the lease contract) to prove that he is qualified for the position. Subsequently, on May 16, 1995, in response to the COMELEC En Banc's May 15, 1995 Order suspending the proclamation of the winner, petitioner filed his Comment/Opposition with Urgent Motion To Lift Order of Suspension of Proclamation asking for the lifting of the C OMELEC's order of suspension. On May 19, 19 95, petitioner again filed a Memorandum and averred that the re cent conversion of Makati into a city made the one-year residence requirement inapplicable; that he resided in Makati for more than a year; thatquo warranto is the right remedy to question his qualification. In passing, petitioner also alleged that the issue on his qualification should be "properly" ventilated in a full-dress hearing before the HRET, albeit praying for the dismissal of the motion for reconsideration for utter lack of merit (and not for lack of jurisdiction), and for lifting the suspension of his proclamation. It was only on June 01 , 1995, in his Motion to File Supplemental Memorandum and Urgent Motion to Resolve Motion to Lift Suspension of Proclamation, when the petitioner raised COMELEC's alleged lack of jurisdiction to resolve the question on his qualification. Clearly then, petitioner has actively participated in the proceedings both before the COMELEC's Second Division and the COMELEC En Banc asking therein affirmative reliefs. The settled rule i s that a party who objects to the jurisdiction of the court and alleges at the same time any non-jurisdictional ground for dismissing the action is deemed to have submitted himself to the jurisdiction of the court. 3 Where a party voluntary submits to the jurisdiction of the court and thereafter loses on the merits, he may not thereafter be heard to say that the court had no jurisdiction. 4 In Jimenez v.Macaraig, 5 the Court, citing Crisostomo v. Court of Appeals, 32 SCRA 54, 60 (1970), elaborated on the rationale for this doctrine in this wise: The petitioners, to borrow the language of Mr. Justice Bautista Angelo (People vs. Archilla, G.R. No. L -15632, February 28, 1961, 1 SCRA 699, 700-701), cannot adopt a posture of double-dealing without running afoul of the doctrine of estoppel. The principle of estoppel is in the interest of a sound administration of the laws. I t should deter those who are disposed to trifle with the courts by taking inconsistent positions contrary to the elementary principles of right dealing and good faith (People v. Acierto, 92 Phil. 534, 541, [1953]). 6 It is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief to afterwards deny that same jurisdiction to escape an adverse decision. 7Perforce, petitioner's asseveration that the COMELEC has no jurisdiction to rule on his qualification must fail. Petitioner insists that domicile is a matter of personal intention. Thus, petition asserts that if he decides to transfer his legal residence so he can qualify for public office then he is entirely free to do so. Thus argument to hold water, must be supported by a clear and convincing proofs that petitioner has effectively abandoned his former domicile and that his intention is not doubtful. Indeed, domicile once established is considered to continue and will not be deemed lost until a new one is established (Co v. Electoral Tribunal House of Representatives, 199 SCRA 692, 711 [1991]). Petitioner from childhood until his last elect ion as senator has consistently maintained Concepcion, Tarlac, as his domicile. He moved to Amapola Street, Palm Village, Makati, and thereafter claimed the same to be his new domicile. This claim, however, is dismally unsupported by the records. The lease contract entered into by petitioner for a period of two years on the third floor condominium unit in Palm Village, Makati, in my view, does not prove his intent to abandon his domicile of origin. The intention to establish domicile must be an intention to remain indefinitely or permanently in the new place. 8 This element is lacking in this instance. Worse, public respondent Commission even found that "respondent Aquino himself testified that his intention was really for only one (1) year because h e has other 'residences' in Manila or in Quezon City ([citing] TSN, May 2, 1995, p. 92)". 9 Noting that petitioner is already barred from running for senator due to the constitutional consecutive two-term limit, his search for a place where he could further and continue his political car eer and sudden transfer thereto make his intent suspect. The best test of intention to establish legal residence comes from one's acts and not by mere declarations alone. 10 To acquire, or effect a change of domicile, the intention must be bonafide and unequivocal (28 C.J.S. §11). Petitioner, in my view, miserably failed to show a bonafide and unequivocal intention to effect the change of his domicile. The theory of legal impossibility is advanced to justify non-compliance with the constitutional qualification on residency. Petitioner explains his theory in this wise: . . . THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE ONLY EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION AND BARELY FOUR MONTHS IN THE CASE OF PETITIONER'S DISTRICT IN MAKATI. 11 Apparently, this theory is an offshoot of Republic Act. No. 7854, an act converting the municipality of Makati into a highly urbanized city. This law enacted on January 2, 1995, e stablished a second Congressional district in Makati in which petitioner ran as a Congressional candidate. Since the second district, according to petitioner, is barely four (4) months old then the one (1) year residence qualification provided by the Constitution is inapplicable. Petitioner's acts, however, as borne by the records, belie his own theory. Originally, he placed in his certificate of candidacy an entry of ten (10) months residence in Makati. Petitioner then had it amended to one (1) year and thirteen (13) days to correct what claims as a mere inadvertent mistake. I doubt the sincerity of this representation. If petitioner is indeed persuaded by his own theory, the ten months residence he initially wrote would have more than sufficiently qualified him to run in the barely four-month old Makati district. The amendment only reveals the true intent of petitioner to comply with one year constitutional requirement for residence, adding an extra thirteen (13) days full measure. Petitioner apparently wanted to argue one way (theory of legal impossibility), but at the same time played it safe in the other (the constitutional one year residence requirement). And that is not all . If we were to adhere to petitioner's theory of legal impossibility, then residents in that district shorn of the constitutional six months residence requirement for prospective voters (Article V, Section 1 of the 1987 Constitution) would have certainly qualified to vote. That would have le gitimized the entry and electoral exercise of flying voters — one of the historic nemeses of a clean and honest election. Furthermore, to subscribe to petitioner's contention that the constitutional qualification of candidates should be brushed aside in view of the enactment of R.A. No. 7854 will indubitably violate the manner and procedure for the amendment or revision of the constitution outlined under Article XVIII of the 1987 Constitution. A legislative enactment, it has to be emphasized,
cannot render nugatory the constitution. The constitution is superior to a statute. It is the fundamental and organic law of the land to which every statute must conform and harmonize. Finally, it has been contended that a second plac e candidate cannot be proclaimed a substitute winner. I find the proposition quite unacceptable. A disqualified "candidate" is not a candidate and the votes which may have been c ast in his favor are nothing but stray votes of no legal consequence. A disqualified person like the petitioner receives no vote or zero vote. In short, no-candidate-no vote. Petitioner had therefore no right, in fact and in law, to c laim first place for he has nothing to base his right. The legislative intent is clear as provided by R.A. 6646, Section 6, in that votes cast for a disqualified candidate shall not be counted as they are considered stray (Section 211, Rule 24, Omnibus Election Code). It is only from the ranks of qualified candidates can one be chosen as first placer and not from without. Necessarily, petitioner, a disqualified candidate, cannot be a first placer as he claims himself to be. To count the votes for a disqualified candidate would, in my view, disenfranchise voters who voted for a qualified candidate. Legitimate votes cast for a qualified candidate should not be penalized alongside a disqualified candidate. With this in mind, the other qualified candidate who garnered the highest number of votes should be proclaimed the duly elected representative of the district. I feel that the Labo doctrine ought to be abandoned. I therefore vote to deny the petition and to lift the temporary restraining order issued by the Court dated June 6, 1995. DAVIDE, JR., J., dissenting: In sustaining the COMELEC's acts of suspending the proclamation of petitioner Agapito A. Aquino and of proceeding to hear the disqualification case against him, the majority opinion relies on Section 6 of R.A. No. 6646 which it claims to be applicable by virtue of Section 7 thereof to petitions to deny due course to or cancel a certificate of candidacy under Section 78 of the Omnibus Election Code (B.P. Blg. 881). I disagree. In the first place, the petition to disqualify the petitioner in SPA No. 95-113 is not a petition to deny due course to or cancel a certificate of candidacy under Section 78, which reads: Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. — A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any personexclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. (emphasis supplied) Nowhere in the petition in SPA No. 95-113 is it alleged by the private respondents that a material representation contained in the petitioner's certificate of candidacy is false. What is being attacked therein is the petitioner's lack of the one-year residence qualification in the new Second Legislative District of Makati City where he sought to he elected for the office of Congressman. The rule governing disqualification cases on the ground of ineligibility, which is also invoked by the private respondents, is Rule 25 of the COMELEC Rules of Procedure, as amended on 15 February 1993. The amendment allows the, filing of a petition to disqualify a candidate on the ground that he does not possess all the qualifications provided for by the Constitution or by existing laws. In its original form, the rule only applied to petitions for disqualification based on the commission of any act declared by law to be a ground for disqualification. The rule as thus amended now reads as follows: Rule 25 — Disqualification of Candidates Sec. 1. Grounds for Disqualification. — Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act decl ared by law to be grounds for disqualification may be disqualified from continuing as a candidate. Sec. 2. Who May File Petition for Disqualification. — Any citizen of voting age, or duly registered political party, organization or coalition of political parties may file with the Law Department of the Commission a petition to disqualify a candidate on grounds provided by law. Sec. 3. Period to File Petition. — The petition shall be filed any day after the last day for fili ng of certificates of candidacy but not later than the date of proclamation. Sec. 4. Summary Proceeding. — The petition shall be heard summarily after due notice. Sec. 5. Effect of Petition if Unresolved Before Completion of Canvass. — If the petition, for reasons beyond the control of the Commission, cannot be decided before the completion of the canvass, the votes cast for the respondent may be included in the counting and in the canvassing; however, if the evidence of guilt is strong, his proclamation shall be suspended notwithstanding the fact that he received the winning number of votes in such election. The underscored portion is the amendment to Rule 25, which the COMELEC must have deemed necessary to fill up a procedural hiatus in cases of disqualifications based on other grounds in the light of this Court's interpretation in Loong vs. Commission on Elections (216 SCRA 760 [1992]) that Rule 25 refers only to disqualifications under Sections 12 and 68 of the Omnibus Election Code. This Court explicitly stated therein as follows: We do not agree with private respondent Ututalum's contention that the petition for disqualification, as in the case at bar, may be filed at any time after the last day for filing a certificate of candidacy but not later than the date of proclamation, applying Section 3, Rule 25 of the Comelec Rules of Procedure. Rule 25 of the Comelec Rules of Procedure refers to Disqualification of Candidates; and Section 1 of said rule provides that any candidate who commits any act declared by law to be a ground for disqualification maybe disqualified from continuing as a candidate. The grounds for disqualification as expressed in Sections 12 and 68 of the Code, are the following: Sec. 12. Disqualification. — Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. Sec. 63 DisquaIifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision of 4 competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said
person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the e lection laws. The petition filed by private respondent Ututalum with the respondent Comelec to disqualify petitioner Loong on the ground that the latter made a false representation in his certificate of candidacy as to hi s age, clearly does not fall under the grounds of disqualification as provided for in Rule 25 but is expressly covered by Rule 23 of the Comelec Rules of Procedure governing petitions to cancel cer tificate of candidacy. Moreover, Section 3, Rule 25 which allows the filing of the petition at any time after the last day for the filing of c ertificates of candidacy but not later than the date of proclamation, is merely a procedural rule issued by respondent Commission which, although a constitutional body, has no legislative powers. Thus, it can not supersede Sec tion 78 of the Omnibus Election Code which is a legislative enactment. Second, even if we assume for the sake of argument that the petition in SPA No. 95-113 fall under Section 78 of the Omnibus Election Code, still Section 6 of R.A. No. 6646 cannot be applied by virtue of Section 7 thereof. Sections 6 and 7 reads: Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. Sec. 71 Petition to Deny Due Course to or Cancel a Certificate of Candidacy. — The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881. The "procedure hereinabove provided" mentioned in Section 7 cannot be c onstrued to refer to Section 6 whichdoes not provide for a procedure but for the EFFECTS of disqualification cases. It can only refer to theprocedure provided in Section 5 of the said Act on nuisance candidates which reads as follows: Sec. 5. Procedure in Cases of Nuisance Candidates. — A verified petition to declare a duly registered candidate as a nuisance candidate under Section 69 .f Batas Pambansa Blg. 881 shall be filed personally or through duly authorized representative with the Commission by any registered candidate for the same office within five (5) days from the last day for the filing of certificates of candidacy. Filing by mail shall not be allowed. (b) Within three (3) days from the filing of the petition, the Commission shall issue summons to the respondent candidate together with a copy of the petition and i ts enclosures, if any. (c) The respondent shall be given three (3) days from receipt of the summons within which to file his verified answer (not a motion to dismiss) to the petition, serving copy thereof upon the petitioner. Grounds for a motion to dismiss may be raised as affirmative defenses. (d) The Commission may designate any of its officials who are lawyers to hear the case and receive evidence. The proceeding shall be summary in nature. In lieu of oral testimonies, the parties may be required to submit position papers together with affidavits or counter-affidavits and other documentary evidence. The hearing officer shall immediately submit to the Commission his findings, reports, and recommendations within five (5) days from the completion of such submission of evidence. The Commission shall render its decision within five (5) days from receipt thereof. (e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy thereof by the parties, be final and executory unless stayed by the Supreme Court. (f) The Commission shall within twenty-four hours, through the fastest available means, disseminate its decision or the decision of the Supreme Court or the city or municipal election registrars, boards of election inspectors, and the general public in the political subdivision concerned. and which is the only procedure that precedes Section 7 of the said Act. Heretofore, no law provided for the procedure to govern cases under Section 78. Applying to such cases, through Section 7 of R.A. No. 6646, the procedure applicable to cases of nuisance candidates is prudent and wise, for both cases necessarily require that they be decided befor e the day of the election; hence, only summary proceedings thereon can adequately respond to the urgency of the matter. Third, Section 6 merely supplements Section 72 of the Omnibus Election Code providing as follows: Sec. 72. Effects of disqualification cases and priority. — The Commission and the courts shall give priority to cases of disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption to office. by granting the COMELEC or the Court the authority to continue hearing the case and to suspend the proclamation if the evidence of guilt is strong. As observed by this Court in its majority "the phrase 'when the evidence of guilt is strong' seems to suggest that the provisions of Section 6 ought to be applicable only to disqualification cases under Section 68 of the Omnibus Election Code." Fourth, the amended Rule 25 of the COMELEC Rules of Procedure, which is the only rule governing petitions filed before election or proclamation for the disqualification of a candidate on the ground that he lacks the qualifications provided for by the Constitution or by law, does not, as can be gathered from Section 5 thereof, authorize the COMELEC to continue hearing the case after the election. Fifth, even assuming that the second sentence of Section 6 of R.A. to No. 6646 is applicable to disqualification cases based on the ground of lack of qualification, it cannot be applied to a case does not involve elective regional, provincial, and city officials, and where suspension of proclamation is not warranted because of the absence of strong e vidence of guilt or ineligibility. In such a case the candidate sought to be disqualified but who obtains the highest number of votes has to be proclaimed. Once he is proclaimed, the COMELEC cannot continue with the case, and the remedy of the opponent is to contest the winning candidate's eligibility within ten days from proclamation in a quo warranto proceeding which is within the jurisdiction of the metropolitan or municipal trial courts, in the case of barangay officials; the regional trial courts, in case of municipal officials (Section 2(2), Article IX-C, Constitution; Section 253, paragraph 2, B.P. Blg. 881); the House of Representatives Electoral Tribunal, in the case of Congressmen; the Senate Electoral Tribunal, in the case of Senators (Section 17, Article VI, Constitution); and the Supreme Court en banc, in the case of the President or Vice-President (Section 4, Article VII, Constitution). If what is involved is an elective regional, provincial, or city official, and the case cannot be decided before the election, the COMELEC can, even after the proclamation of the candidate sought to be disqualified, proceed with the case by treating it as a petition for quo warranto, since such a case properly pertains to the exclusive jurisdiction of the COMELEC (Section 2(2), Article IX-C, Constitution; Section 253, B.P. Blg. 881).
But even granting for the sake of argument that Sections 6 and 7 of R.A. No. 6646, in relation to Section 78 of the Omnibus Election Code and the amended Rule 25 of the COMELEC Rules of Procedure, are applicable, the order of suspension of the petitioner's proclamation issued on 15 May 1995 is null and void for having been issued with grave abuse of discretion. What was before the COMELEC en banc at that stage was the decision of the Second Division of 6 May 1995 dismissing the petition to disqualify the petitioner and declaring him qualified for the position. That decision is a direct and positive rejection of any claim that the evidence of the petitioner's guilt is strong. Note that it was only on 2 June 1995, when the COMELEC en banc reversed the decision of the Second Division, that it was found that the evidence of the petitioner's ineligibility is strong. It would have been otherwise if the Second Division had disqualified the petitioner. Besides, at the time the questioned order was issued, there was no hearing yet on the private respondents' motions for the suspension of the petitioner's proclamation. In fact, in that order the COMELEC en bancadmitted that the said motions could not be resolved without hearing, thus: Pending the resolution of the petitioners' Motion for Reconsideration filed on May 7, 1995; Urgent Motion Ad Cautelam to Suspend Proclamation of Respondent (May 10, 1995) filed on May 10, 1995; and OMNIBUS MOTION (For Reconsideration of the Honorable Commission's [Second Division] Resolution dated May 6, 1995, and 2nd Urgent Motion Ad Cautelam to Suspend Proclamation of Respondent Aquino, which cannot be resolved without hearing, without violating the right of the respondent to due process. . . . For being void from the beginning; it is as if the order of 15 May 1995 had not existed and could not, therefore, be made permanent by the COMELEC en banc through its resolution of 2 June 1995 whose dispositive portion reads in part: [c]onsequently, the order of suspension of the respondent should he obtain the winning number of votes, issued by this Commission on 15 May 1995 is now made permanent." Absent a valid finding before the election or after the canvass of election returns that the evidence of the petitioner's guilt or ineligibility is strong, the COMELEC should not have suspended the proclamation of the petitioner. After the completion of the canvass the petitioner should have been proclaimed. This case then must be distinguished from that of Imelda Romualdez-Marcos vs. Commission on Elections, G.R. No. 119976, where the COMELEC en banc affirmed before the elections, or on 7 May 1995, the Second Division's resolution of 24 April 1995 disqualifying Mrs. Marcos. Accordingly, the order of 15 May 1995 and the resolution of 2 June 1995 of the COMELEC en banc must be annulled and set aside, and the COMELEC, through its City Board of Canvassers of Makati, must be ordered to immediately proclaim the petitioner, without prejudice to the right of his opponents to file a petition for quo warranto with the House of Representatives Electoral Tribunal, which is the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives (Section 17, Article VI, Constitution). In view of the foregoing, a disquisition on the merits of the ground for the petitioner's disqualification will no longer be proper. I vote to GRANT the instant petition, to ANNUL and SET ASIDE the challenged order and resolution of the Commission on Elections en banc, and to DIRECT the Board of Canvassers of Makati City to reconvene and proclaim the petitioner as the winning candidate, without prejudice on the part of any aggrieved party to file the appropriate action in the House of Representatives Electoral Tribunal. Romero and Bellosillo, JJ., concur. VITUG, J., separate opinion: I find what I would consider as the relevant issues in this petition as similar in almost all material respects to those obtaining in G.R. No. 119976 (Imelda Romualdez-Marcos vs. Commission on Elections and Cirilo Roy Montejo). Let me then here just reiterate what I have there said in my separate opinion. The case at bench deals with explicit Constitutional mandates. The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets up ideals and directions and rend er steady our strides hence. It only looks back so as to ensure that mistakes in the past are not repeated. A complaint transience of a constitution belittles its basic function and weakens its goals. A constitution may well become outdated by the realities of time. When it does, it must be changed but while it remains, we owe it respect and allegiance. Anarchy, open or subtle, has never been, nor must it ever be, the answer to perceived transitory needs, let alone societal attitudes, or the Constitution might lose its very essence. Constitutional provisions must be taken to be mandatory in character unless, either by express statement or by necessary implication, a different intention is manifest (see Marcelino vs. Cruz, 121 SCRA 51). The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of the fundamental law. These provisions read: Sec. 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election. Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all laws and regulations relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that, there being nothing said to the c ontrary, should include its authority to pass upon the qualification and disqualification prescribed by law of candidates to an elective office. Indeed, preproclamation controversies are expressly placed under the COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution). The matter before us specifically calls for the observance of the constitutional one-year residency requirement. This issue (whether or not there is here such compliance), to my mind, is basically a question of fact or at least inextricably linked t o such determination. The findings and judgment of the COMELEC, in accordance with the long established rule and subject only to a number of exceptions under the basic heading of "grave abuse of discretion," are not reviewable by this Court. I do not find much need to do a complex exercise on what seems to me to be a plain matter. Generally, the term "residence" has a broader connotation that mean permanent (domicile), official (place where one's official duties may require him to stay) or temporary (the place where he sojourns during a considerable length of time). For Civil law purposes, i.e., as regards the exercise of civil rights and the fulfillment of civil obligations, the domicile of a natural person is the place of his habitual residence (see Article 50, Civil Code). In election cases, the controlling rule is that heretofore announced by this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus:
In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term "residence" as used in the election law is synonymous with "domicile," which imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention." "Domicile" denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. . . . Residence thus acquired, however, may be lost by adopting another choice of domicile. In order, in turn, to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary, and the residence at the place chosen for the new domicile must be actual. Using the above tests, I am not convinced that we can charge the COMELEC with having committed grave abuse of discretion in its assailed resolution. The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral Tribunal conc erned begins. It signifies that the protestee must have theretofore been duly proclaimed and has since become a "member" of the Senate or the House of Representatives. The question can be asked on whether or not the proclamation of a candidate is just a ministerial function of the Commission on Elections dictated solely on the number of votes cast in an election exercise. I believe, it is not. A ministerial duty is an obligation the performance of which, being adequately defined, does not allow the use of further judgment or discretion. The COMELEC; in its particular case, is tasked with the full responsibility of ascertaining all the facts and conditions such as may be required by law before a proclamation is properly done. The Court, on its part, should, in my view at least, refrain from any undue encroachment on the ultimate exercise of authority by the Electoral Tribunals on matters which, by no less than a constitutional fiat, are explicitly within their exclusive domain . The nagging question, if it were otherwise, would be the effect of the Court's p eremptory pronouncement on the ability of the Electoral Tribunal to later come up with its own judgment in a contest "relating to the el ection, returns and qualification" of its members. Prescinding from all the foregoing, I should like to next touch base on the applicability to this case of Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas Pambansa Blg. 881, each providing thusly: REPUBLIC ACT NO. 6646 xxx xxx xxx Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. BATAS PAMBANSA BLG. 881 xxx xxx xxx Sec. 72. Effects of disqualification cases and priority. — The Commission and the courts shall give priority to cases of disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final judgment before an election to be disqualified, and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption to office. I realize that in considering the significance of the law, it may be preferable to look for not so much the specific instances they ostensibly would cover as the principle they c learly convey. Thus, I will not scoff at the argument that it should be sound to say that votes cast in favor of the disqualified candidate, whenever ultimately declared as such, should not be counted in his or her favor and must accordingly be considered to be stray votes. The argument, nevertheless, is far outweighed by the rationale of the now prevailing doctrine first enunciated in the c ase of Topacio vs. Paredes (23 Phil. 238 (1912]) which, although later abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1 [1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most recently, Benito (235 SCRA 436 (1994]) rulings. Benito vs.Comelec was a unanimous decision penned by Justice Kapunan and concurred in by Chief Justice Narvasa, Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno, Vitug and Mendoza (Justices Cruz and Bellosillo were on official leave). For easy reference, let me quote from the first Labodecision: Finally, there is the question of whether or not the private re spondent, who filed the quo warrantopetition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City. The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740) decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all disregard as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting (Teehankee, Acting C.J., Abad Santos and Melencio -Herrera, JJ.) and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.) Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 i n Topacio v.Paredes, (23 Phil. 238) was supported by ten members of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although one reserved his vote, (Makasiar, J.) another took no part, (Aquino, J.) and two others were on l eave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held: . . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all
republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 234, p. 676.) The fact that the candidate who obtained the highest number of votes i s later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and le gislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. (at pp. 20-21) Accordingly, I am constrained to vote for the dismissal of the petition. MENDOZA, J., separate opinion: For the reasons expressed in my separate opinion in the companion case. G.R. No. 119976. Imelda Romualdez-Marcos v. Commission on Elections. I am of the opinion that the Commission on Elections has no jurisdiction over petitions for disqualification of candidates based on alleged ineligibility for the office to which they seek election. The May 15, 1995 resolution of the COMELEC en banc, suspending he obtain the highest number of votes of Representative of the Second District of Makati, Metro Manila, purports to have been i ssued pursuant to §6 of R.A. No. 6646. This provision authorizes the COMELEC to order the suspension of the proclamation "whenever the evidence of his guilt is strong." As explained in my separate opinion in G.R. No. 119976, however, this provision refers to proceedings under §68 of the Omnibus Election Code which provides for the disqualification of candidates found guilty of using what in political parlance have been referred to as "guns goons or gold" to influence the outcome of elections. Since the disqualification of petitioner in this case was not sought on this ground, the application of §6 of R.A.. No. 6646 is clearly a grave abuse of discretion on the part of the COMELEC. Nor may the petition to disqualify petitioner in the COMELEC be justified under §78 of the OEC which authorizes the filing of a petition for the cancellation of certificates of c andidacy since such a petition maybe filed "exclusively on the ground that a material representation contained [in the certificate] as required under section 74 i s false." There was no allegation that in stating in his certificate of candidacy that he is a resident of Amapola St., Palm Village, Guadalupe Viejo, Makati, Metro Manila, petitioner made any false representation. For this reason, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-113; that its proceedings in SPA No. 95113, including the questioned orders, are void; and that the qualifications of petitioner Agapito A. Aquino for the position of Representative of the Second District of the Ci ty of Makati may only be inquired into by the House of Representatives Electoral Tribunal. This conclusion makes it unnecessary for me to e xpress my view at this time on the question whether, in the event the candidate who obtained the highest number of votes is declared i neligible, the one who received the next highest number of votes is entitled to be declared the winner. Accordingly, I vote (1) to grant the petition in this case and (2) to annul the proceedings of the Commission on Elections in SPA No. 95-113, including the questioned orders, dated May 6, 1995. May 15, 1995, and the two orders both dated June 2, 1995, so far as they declare petitioner Agapito A. Aquino to be ineligible for the position of Representative of the Second District of the City of Makati and direct the City Board of Canvassers of Makati to determine and proclaim the winner out of the r emaining qualified candidates. Narvasa, J., concurs. G.R. No. L-53460 May 27, 1983 THE PROVINCIAL CHAPTER of LAGUNA, NACIONALISTA PARTY (NP), petitioner, vs. COMMISSION ON ELECTIONS and FELICISIMO T. SAN LUIS, respondents. Marciano P. Brion Jr. for petitioner. The Solicitor General for respondent COMELEC. Felicisimo T San Luis and Rustico F. de los Reyes for private respondent.
MAKASIAR, J.: This is a petition for certiorari filed by the petitioner against respondents which seeks to impugn the validity of the proceedings held before the respondent Commission on Elections (COMELEC) in PDC No. 165 , wherein the disqualification of herein private respondent Felicisimo T. San Luis was sought, the same being allegedly violative of the due process clause of the Constitution; and to reverse the dismissal resolution issued by respondent COMELEC in said PDC No. 165, as being allegedly in contravention of the Constitution (Article XII-C, Section 10) and of Section 4, Batas Pambansa Blg. 52. In the elections of November 8, 1971, private respondent Felicisimo T. San Luis was the official candidate of' the Liberal Party (LP) for Governor of Laguna. Private respondent won and accordingly assumed said position, the term of which would have ordinarily expired on December 31, 1975. On January 18, 1980, petitioner filed with the COMELEC a petition (docketed as PDC No. 165) to di squalify the private respondent from running as official candidate of the Ki lusang Bagong Lipunan (KBL) for the organization,'as of Governor in the province of Laguna based on "turncoatism" as provided for under Section 10, Article XII-C, of the 1973 Constitution in relation to Section 4 of Batas Pambansa Blg. 52 [pp. 22-24, rec.]. Section 10, Article XII-C, of the 1973 Constitution reads: Sec. 10. — No elective public officer may change his political party affiliation during his term of office, and no candidate for any elective public office may change his political party affiliation within six months immediately preceding or following an election. The pertinent portion of Section 4, Batas Pambansa Blg. 52 r eads: Sec. 4. Special Disqualification. — In addition to violation of Section 10 of Article XII-C, of the Constitution and disqualifications mentioned in existing laws, which are hereby declared as disqualifications for any of the elective officials enumerated in Section 1 hereof, any retired elective provincial, city or municipal official, who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected, shall not be qualified to run for the same elective local organization,'as from which he has retired (emphasis supplied). The records likewise reveal that prior to January 23, 1980, a similar petition to disqualify on the ground of turncoatism (docketed as PDC No. 172) was filed by the Provincial Chapter of Laguna, Kilusang Bagong Lipunan (KBL) against Wenceslao R. Lagumbay, the Nacionalista Party (NP) official candidate for Governor of Laguna, in the January 30, 1980 elections [pp.. 79-80, rec.].
On January 21, 1980, private respondent Felicisimo T. San Luis filed with the Commission on Elections (COMELEC) his answer in PDC No. 165 [pp. 25-28, rec.]. On the same date, the Commission on Elections (COMELEC) set for joint hearing PDC No. 165 and PDC No. 172 on January 24, 1980 at 10:00 A.M. [pp. 75-76, rec.]. On January 23, 1980, the private respondent filed with the public respondent COMELEC his "Formal Submission of Annexes" [pp. 31-32, rec.]. On January 24, 1980, private respondent Felicisimo T. San Luis (respondent in PDC No. 165) filed with the Commission on Elections (COMELEC) a memorandum [pp. 77-78, rec.l. Likewise, on the same date, Wenceslao R. Lagumbay, respondent in PDC No. 172, filed with the COMELEC a "Formal Offer of Documentary Evidences with Comments on Petitioner's Own Evidences" [pp. 85- A to 87, rec.]. On January 25, 1980, herein petitioner filed with the Commission on Elections a memorandum [p. 2, COMELEC's Comment; p. 95, rec.]. On February 4, 1980, the private respondent filed with the COMELEC a motion for an early favorable resolution of the case, it allegedly appearing that he had won over Wenceslao R. Lagumbay, the Nacionalista Party (NP) official candidate, by a majority of around 55,000 votes [p. 2, COMELEC's Comment; p. 95, rec.]. On February 6, 1980, the petitioner filed with the COMELEC its reiteration to disqualify private respondent Felicisimo T. San Luis [p. 2, COMELEC's Comment; p. 95, rec.]. On February 21, 1980, the COMELEC, in a resolution, denied the petition to disqualify private respondent Felicisimo T. San L uis as "the petitioner failed to present sufficient evidence against herein respondent. " Thus, Resolution No. 9188 reads: 9188. (PDC No. 165). In the matter of the petition for disqualification, dated January 18, 1980, tied by the Provincial Chapter of Laguna, Nacionalista Party (NP), r epresented by Wenceslao R. Lagumbay, Acting Chairman, against Felicisimo T. San Luis, respondent, on the ground that said respondent allegedly violated the provision of Section 10, Article XII- C, Constitution in relation to Batas Pambansa Big. 52. A review of the said petition shows that the petitioner failed to present sufficient evidence against herein respondent. Premises considered, the Commission RESOLVED to deny the Petition of the Provincial Chapter of Laguna, Nacionalista Party (NP). SO ORDERED [p. 33, rec.; emphasis supplied]. Hence, the instant petition. I It is initially contended by the petitioner that public respondent Commission on Elections issued the questioned resolution (No. 9188) dismissing the petition in PDC No. 165, without observance of the cardinal precepts of due process. While petitioner admitted that the disqualification case was set for hearing on January 24, 1980 at 10:00 A.M., nevertheless, it vehemently argued that the mere setting alone of such hearing cannot be taken as satisfying the r equirements of due process. Thus, petitioner insisted "that at COMELEC no formal hearing was conducted wherein the parties could have confronted witnesses against each other. "NOT A SINGLE COMMI SSIONER WAS IN ATTENDANCE. Only a staff member of its Legal Department was present when the case was called for hearing, and he directed the parties to submit their respective 'Annexes' (exhibits) after which, their memoranda" [p. 1, Petitioner's Reply; p. 118, rec.]. The aforesaid allegations of the petitioner have no foundation. It is to be noted that private respondent in its comment filed before this Court alleged the following. Private respondent thru counsel manifested that he was formally resting his case on the basis of the exhibits 1 evidence which he had formally offered in writing, and a copy of which was further presentation Atty. Marciano Brion Jr., counsel for the petitioner. Atty. Brion reserved his right to regi ster his objections to the exhibits in writing, and manifested that he was; not presenting any more e vidence, in view of the admission of private respondent that he was elected Governor of Laguna on November 8,1971 as official candidate of the Liberal Party and then ran for the same position as the standard bearer of the KBL Party during the January 30, 1980 elections. In fact, this was the same trend of argument adopted by petitioner when it argued as follows: If private respondent is bound, as all parties who filed pleadings in Court should be bound, by his affirmative allegations and admission in his pleadings signed by him under oath, then the case should end here with his disqualification and without any need for any presentation discussion.' Not that private respondent agrees with the aforegoing Argument of Petitioner. The same was merely cited to show that in the proceedings before respondent COMELEC, petitioner really preferred not to present evidence, contrary to its claim now, that it was denied procedural due process, in that its c ounsel was not able to present evidence confront witnesses or object to exhibits. Parties were even required to submit their respective memoranda. Private respondent submitted his memoranda in both cases, PDC No. 165 and 1 72, xerox copies of which are hereto attached as Annexes 3 and 4 of this comment. If Petitioner did not submit its memoranda, that is its fault, but certainly, it cannot shift the blame on the respondent COMELEC or to private respondent for not doing what it should have done. Attached to this Comment as Annex 5 is the xerox copy of the Formal Submission of Annexes of Respondent in PDC No. 166 showing on the bottom of page 2 thereof, that petitioner thru counsel was duly furnished a copy thereof. The fact of the matter is that counsel for petitioner concentrated his efforts more on PDC No. 172 entitled the Provincial Chapter of Laguna (KBL) vs. Wenceslao R. Lagumbay, as shown by the fact that on the date of the hearing on January 24, 1980, he submitted therein his own 'Formal Offer of Documentary Evidence with Comments on Petitioner's Own Evidences' a xerox copy of which is hereto attached as Annex 6 of this Comment [pp. 46, Comment of Private Respondent Felicisimo T. San Luis; pp. 48-50, rec.; emphasis supplied]. In its reply, petitioner miserably failed to deny the said allegations of the private respondent. This is fatal to the cause of the petitioner. WE are constrained to sustain the stand of private respondent; for, apart from the presumption of regularity acco rded to respondent Commission in the performance of its duties, petitioner failed to ti mely assert his right prior to the issuance of the above-questioned resolution. From January 24, 1980 up to February 21, 1980, when respondent COMELEC issued the aforementioned resolution, petitioner failed to press before respondent COMELEC its bid for an opportunity to be heard and belatedly cry for an alleged denial of due process only after receipt of an adverse resolution. As correctly pointed out by the private respondent, "(I)ndeed, if petitioner had evidence to present or wanted to confront witnesses or object to evidence in open session (instead of submitting a written objection as he manifested before respondent COMELEC) why did it not file a motion to set the case again for hearing, knouting that elections were over and ei ther its candidate or the private respondent would be proclaimed sooner or later. Surely, if petitioner sincerely believed that it has not presented evidence, it should have acted immediately by asking the COMELEC to set the case for hearing for reception of its evidence, unless of course, petitioner thought that its candidate would win the elections, which was, of course, presumptuous on its part [pp. 8-9, Comment of Private Respondent Felicisimo T. San Luis, pp. 52-53, rec.; emphasis supplied].
The requirements of due process are obeyed as long as the parties are given the opportunity to be heard. In the case at bar, petitioner was afforded all the chances to be heard until it submitted the case for resolution by his manifestation that, because of the admission of private respondent that he ran as Liberal Party candidate in the 1971 elections, he was not presenting any more evidence, only reserving his right to object to respondent's evidence. In the case of Maglasang vs. Ople (L-38813, 63 SCRA 508 [19751, then Associate Justice, now Chief Justice Enrique M. Fernando, ruled that the right of due process is not denied where the aggrieved party was given the opportunity to be heard. The essence of due process is the requirement of notice and hearing, the presence of a party at a trial is not always of the essence of due process, and an that due process requires is an opportunity to be heard (Auyong Hian vs. Court of Tax Appeals, et al., L-28782, Sept. 12, 1974, 59 SCRA 110; Asprec vs. Itchon, L-21685, April 30, 1966, 16 SCRA 921; Cornejo vs. Secretary of Justice, et al., L-32818, June 28, 1974, 57 SCRA 663). It is significant to note that respondent COMELEC's resolution was issued after private respondent submitted his "Formal Submission of Annexes" and after both parties submitted their respective memoranda. Thus, respondent COMELEC stated that it "decided PDC No. 165 based on the petition and memorandum of the petitioner and the answer, memorandum and the motion for the early favorable resolution of the case of the private respondent. To say, at this late hour, that the petitioner was denied the process in the COMELEC is unwarranted, ... . The petitioner had been allowed ample opportunity to ventilate its charge before the respondent COMELEC, as seen above, and failed in its attempt to support the same with proof " (p. 4, COMELEC's Comment; p. 97, rec.). In other words, the petition filed against private respondent in PDC No. 165 was deemed submitted for decision on the basis of the pleadings, annexes and memoranda of the parties. And there i s no denial of due process if the decision was "rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected (Interstate Commerce Commission vs. L. & N.R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law. ed. 431; cited in Ang Tibay, et al. vs. The Court of Industrial Relations, et al., 69 Phil. 635, 643; emphasis supplied). A case in point is the case of Armedilla vs. COMELEC, et al. (No. 53393, recently decided by this Court on March 31, 1981). In said case, the COMELEC dismissed Armedilla's petition to disqualify private respondent Dizon. The dismissal was anchored on the ground of insufficiency of evidence. Thus: 30. With respect to the disqualification case against Dizon, Armedilla interposed in this Court on March 18, 1980 an 'appeal by certiorari' wherein he contended that the Comelec did not observe due process in dismissing the case (G.R. No. 53393). 31. Dizon in his comment on that appeal traversed the allegation as to nonobservance of due process. He said that at the hearing of the petition for disqualification on January 26, 1980 in the Comelec the case was submitted on the basis of the pleadings (p. 30, rollo of G.R. No. 53393) [emphasis supplied]. In Ruling to the effect that the COMELEC complied with the basic requirements of procedural due process in deciding the case on the basis of the pleadings submitted by the parties, this Court declared: With respect to the disqualification case against Mayor Dizon (G.R. No. 53393), the contention that due process was not observed in dismissing that case is not well-taken because petitioner Armedilla was given a chance to controvert Dizon's defense that he was already a KBL partisan in April 1978, or more than six months prior to January 30, 1980 but Armedilla was not able to overthrow that defense. He submitted the case for decision by the Comelec on the pleadings(emphasis supplied). Similarly, in the more recent case of Garcia vs. COMELEC, et al., (No. 53793, June 29,1981), this Court ruled: Likewise, We are not in accord with the argument of the petitioner that she was denied due process because she was not afforded the opportunity 'to refute the alleged f indings of the handwriting experts of the Comelec.' Such contention is without merit. At the outset, it should be recalled that at the hearing on March 11, 1980 before the COMELEC, the parties dispensed with the presentation of testimonial evidence, and merely prepared oral arguments and submitted the case for decision after filing their 'Annexes' memoranda. Petitioner therefore waived further presentation of evidence(emphasis supplied). Aside from the fact that petitioner expressly waived its right to present presentation evidence, the mere act of petitioner's counsel in merely filing a memorandum after being satisfied with the alleged admission of private r espondent until the issuance of the aforequoted adverse resolution, is already an implied manifestation that he was waiving his right to the other elements of a judicial hearing, like the presentation of additional evidence or the cross-examination of witnesses. And petitioner's right to a hearing embracing particular elements, appropriate to judicial proceedings may be waived by takin g part in informal proceedings without objection (Martin vs. Wolfson, 218 Minn. 557, 16 NW 2d 884; cited in 2 Am. Jur. 2d 114). Thus: ... The right to present evidence, to have witnesses sworn and to have them subjected to direct and crossexamination in accordance with recognized judicial procedure was the right of any interested person present at the hearing. But unless that right was asserted, it must be considered waived While courts have a tender regard for the rights and privileges of citizens, there is no reason of public policy why they should invoke for him constitutional or statutory rights which he himself has voluntarily relinquished . ... And, if the failure to swear a witness in an ordinary civil trial, or even in a criminal trial, may be waived by failure to object or by express consent (70 C.J., Witnesses, S 654; 39 Am. Jur., New Trial, S 532), clearly the ri ght to have witnesses sworn and subjected to examination in an administrative hearing conducted without traditional court ritual must be considered as waived where interested participate therein without questioning the procedure. People ex rel. Niebuhr v. McAdoo 184 N.Y. 304, 77 N.E. 260, 6 Ann. Cas. 56; Proctor v. Smith, Tex. Civ. App., 299 S.W. 663 ... [Martin vs. Wolfson, supra, p. 890; emphasis supplied]. It is finally contended by petitioner that private respondent Felicisimo T. San Luis i s guilty of "turncoatism," in violation of Section 10, Article XII (C) of the 1973 Constitution in relation to Section 4 of Batas Pambansa Blg. 52 and P.D. No. 1661, as amended by P.D. No. 1661-A. It is undisputed that private respondent won the gubernatorial organization,'as in the 1971 local elections under the banner of the Liberal Party and that when he filed his certificate of candidacy for governor on January 3, 1980 for the January 30, 198 0 elections, he indicated his party affiliation as that of Kilusang Bagong Lipunan (KBL). Since 1971 however, "much water has passed under the bridge." A review of the political events prior and subsequent to the November 8, 1971 local elections becomes imperative to resolve the aforesaid issue. On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by Resolution No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose amendments to the Constitution of the Philippines. Said Resolution No. 2, as amended, was i mplemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to the provisions of which the e lection of delegates to said Convention was held on November 10, 1970, and the 1971 Constitutional Convention began to perform its functions on June 1, 1971. While the Convention was in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire Philippines under Martial Law. On November 29, 1972, the Convention approved its Proposed Constitution of the Philippines. The next day, November 30, 1972, the President of the Philippines issued Presidential Decree No. 73, 'submitting to the Fi lipino people for ratification or rejection the Constitution of the
Republic of the Philippines proposed by the 1971 Constitutional Convention, and appropriating funds thereof,' as well as setting the plebiscite for said ratification or rejection of the Proposed Constitution on January 15, 1973. ... (Javellana vs. The Executive Secretary, 50 SCRA 30, 55). In a Presidential Decree dated December 31, 1972, the President issued P.D. No. 86 organizing Citizens Assemblies in each bar rio in municipalities and in each district or ward in chartered cities "to broaden the base of citizens participation in the d emocratic process and to afford ample opportunities for the citizenry to express their views on important national issues." This was subsequently amended by P.D. No. 86-A on January 5, 1973 and P.D. No. 86-B on January 7, 1973 requiring the submission of important national questions or issues, among them the approval of the New Constitution, and the holding of a plebiscite on the New Constitution. On January 17, 1973, the President issued Proclamation No. 1102 "(A)nnouncing the ratification by the Filip ino people of the Constitution proposed by the 1971 Constitutional Convention." On March 31, 1973, this Court ruled in the above-quoted Javellana case that "there i s no presentation judicial obstacle to the new Constitution being considered in force and effect." The aforesaid new Constitution in its Transitory Provisions extended indefinitely the term of organization,'as of all incumbent public officers and employees at the time of the ratification of the said Constitution. Thus: All officials and employees in the existing Government of the Republic of the Philippines shall continue in organization,'as until otherwise provided by law or decreed by the i ncumbent President of the Philippines, but all officials whose appointments are by this Constitution vested in the Prime Minister shall vacate their 'Annexes' offices upon the appointment and qualification of their successors (Sec. 9, Art. XVII). It is significant to point out at this juncture that a novel provision of the 1973 Constitution pertinent to the case at bar reads: No elective public officer may change his political party affiliation during his term of office, and no candidate for any elective public organization,'as may change his political party affiliation within six months immediately preceding or following an election (Sec. 10, Art. XII [C]). A casual perusal of Section 10, Article XII (C) of the 1973 Constitution would readily show that it imposes prohibition, on two classes of individuals, namely: (1) an elective public officer who changes political party affiliation during his term of office, and (2) a candidate for any elective public office who changes political party affiliation within 6 months immediately preceding or following an election. It is very much apparent from the pleadings filed by the petitioner that in seeking the disqualification of herein private respondent before respondent COMELEC it heavily relied on the first clause of Section 10, Article XII (C)-prohibiting elective public officers from changing party affiliation during their term of office. In arguing that private respondent is guilty of "turncoatism" under the second clause of Section 10, Article XII (C) of the 1973 Constitution, petitioner asserted: More than anything, it may not be safe to admit that private respondent, legally speaking, moved over to the KBL on March 15, 1978, as contended. Not even if the genuineness of his purported Certificate of Affiliation with that organization is admitted. To be reckoned with, unfortunately for him, are the pronouncements of the Honorable Supreme Court in Peralta vs. Comelec, 82 SCRA 30 and Lakas ng Bayan vs. Comelec, 82 SCRA 196, to the effect that the KBL was not a political party in 1978, but only 'an umbrella organization,'as it specifically said: The KBL is NOT A POLITICAL PARTY. It is a group or aggrupation ..., which is "a tempo-alliance, union, or coalition ... of persons or parties for the purpose of joint action and combining their resources to support a common list of candidates (emphasis supplied). And so, insofar as the now involved, constitutional ban is concerned, when did private respondent transfer affiliation to the KBL? Certainly, not before KBL became a political party 'only in late December, 1979, after the sudden calling of the elections for January 30, 1980,' by the words of Justice Teehankee in concurring in the Reyes vs. Comelec decision. Thus, did private respondent also violate the second phase of the same constitutional prohibition that of changing party affiliation within six months before election (pp. 6-7, Petitioner's Reply; pp. 123 -124, rec.). The above contention is not wen taken. In the case of Sevilleja vs. COMELEC (Nos. 52793 and 53504, August 31, 1981), reiterated in Geronimo vs. COMELEC (No. 52413, September 26, 1981), this Court ruled: ... (T)he question of whether or not the KBL is a political party has been foreclosed by subsequent political developments. As significantly observed by this Court in Santos vs. Commission on Elections, et al., supraUnder its Resolution Ne 1406, promulgated December 22, 1979 laying down rules on the accreditation of political parties, Section 1 thereof provides that any duly registered political party in the April 7, 1978 election shag be entitled to accreditation. Pursuant to this Resolution, KBL was duly accredited separately from the NP That KBL had always been a political party or aggrupation can, therefore, no longer be open to question. Were KBL not such a political party, block voting as was declared valid in the case of Peralta vs. COMELEC, 82 SCRA 30, G.R. No. L47771, March 11, 1978, could not have been availed of, by it, as it unquestionably did, in the 1978 elections. For block voting is voting for a political party. Moreover, after the decision in the case of LABAN vs. COMELEC (82 SCRA 196 [19781), the KBL was transformed into a distinct political party and ceased as a mere umbrella organization, as shown by subsequent political developments. It is significant to note that, after the April 1978 election, in the Interim Batasang Pambansa, majority of the assemblymen are Identified and Identify themselves with pride as KBL members sporting T-shirts, hats and pins labelled KBL; while the handful of opposition diehards Identify themselves as members of the Nacionalista Party or Pusyon Bisaya or Mindanao Alliance Much later, until December, 1979, the majority members of the IBP kept referring to themselves as KBL members and held caucuses or meetings to discuss vital issues and proposed legislations as such KBL members. On the floor of the IBP, the members of the KBL Identify themselves as such and the KBL has been referred to as the party of the administration. The actuations of the organizers, leaders and members of the KBL established the said party as a de facto political party since April 1, 1978. The acts performed by the KBL leaders and their members, not the formality of its registration as a party, should determine the commencement of its existence as such political party. It has been held with reference to illegal associations that the nature and true character of an organization are oftentimes determined by the speeches and activities of its leaders and members rather than by its constitution and by-laws (Mr. Justice Mariano Albert in People vs. Ramos, CA-G.R. No. 5318, Dec. 28,1940,40 O.G. 2305, Sept. 30,1941). The hesitant stance taken by petitioner in assailing the candidacy of private respondent based on the second cl ause of Section 10, Article XII (C), prohibiting candidates for any elective public office from changing party affiliation within 6 months immediately preceding or following an election is not surprising. It must be noted that as early as March, 1978, private respondent was undisputedly expelled from the Liberal Party together with other Liberal Party stalwarts as Governor Eduardo Joson of Nueva Ecija, Governor Faustino Dy of Isabela and Assemblyman Eddie Ilarde-about fifteen (15) months before the six-
month prohibitive period commenced in July, 1979 (pp. 83-84, rec.). The expulsion was obviously due to private respondent's open support for and affiliation with the then newly organized Ki lusang Bagong Lipunan (KBL). This is shown by the fact that he became Chairman of the KBL, Provincial Chapter in Laguna, and Chairman and Campaign Manager for Region IV- A consisting among others of the Southern Tagalog provinces and hence actively campaigned for KBL candidates in the April, 1978 elections for the members of the Interim Batasang Pambansa. It is li kewise undisputed that private respondent has been a holder of a certificate of affiliation as a bona fide KBL member as early as of March, 1978. Of course, there can be no doubt that had private respondent sought within six months before January 30, 1980, his expulsion from the Liberal Party to anticipate a forthcoming elections as alluded to by petitioner, the same is clearly an act of political opportunism. But such expulsion could not have been sought by private respondent as there was no certainty as to the calling of elections on January 30, 1980. As a matter of fact, the January 30, 1980 local elections was not even contemplated in April, 1978. In the language of petitioner, "(N)o one for a fact, then knew when the next elections would be called" (p. 6, Petitioner's R eply; p. 123, rec.). The contention of petitioner that private respondent switched party affiliation during his term of organization,'as and hence guilty of "turncoatism" is not tenable. It is appropriate to note that private respondent was elected governor on November 8, 1971 f or a frameup. term or up to 1975. As correctly pointed out by private respondent, that the term of office of those elected in the November 1971 elections expired on December 31, 1975, the period intended by the framers to be covered by the constitutional prohibition, can be gleaned from among the questions asked during the February 27, 1975 referendum and from one of the whereases of P.D. No. 1296, also known as "The 1978 Election Code." Thus, in the referendum of February 27, 1975, the following specific question was among the questions asked: ON LOCAL OFFICIALS At the expiration of the terms of office of your local elective officials on December 31, 1975, how do you want their successors chosen: to be appointed by the President or elected in accordance with the Election Code? (Emphasis supplied). And among the whereases of P.D. No. 1296, more popularly known as "The 1978 Election Code" reads: WHEREAS, the elective local officials whose terms of office expired on December 31, 1975 were allowed to continue in organization,'as subject to the pleasure of the President; (emphasis supplied). Furthermore, in the case of Seares vs. COMELEC (L-34381, May 31, 1977, 77 SCRA 273, 278), this Court ruled that four-year term of office of those elected in the November 8, 1971 elections already expired. In the aforesaid Seares case, a petition was filed on November 23, 1971 against private respondents Carmelo Barbero and Gavino Balbin, who were duly elected as governor and vice-governor respectively, assailing the minute resolution issued by respondent COMELEC denying for lack of merit, petitioner's petition for the cancellation of the certificate of candidacy of private respondents and the minute resolution li kewise issued by respondent COMELEC denying petitioner's motion for reconsideration subsequently filed. In dismissing the said petition, this Court, speaking through then Associate Justice Felix Q. Antonio, statedinter alia: "and considering further, that the four-year term of office of those elected and proclaimed in the election of November 8, 1971, particularly the offices of Governor and Vice-Governor has already expired, We find the present petition moot and academic" (emphasis supplied). Noteworthy in the above-cited case is the fact that it was decided by this Court after December 1975 and over four (4) years prior to the January 30, 1980 local elections. While there might be plausibility in the contention of petitioner that Section 9, Article XVII in the Transitory Provisions extended indefinitely the term of organization,'as of all i ncumbent public officers and employees, nonetheless, the same will not suffice to bring the case of the private respondent within the constitutional prohibition. WE take the view that the evident intention of the new Constitution was to apply the prohibition, as to party switching (turncoatism) to the term of office for which one was previously elected in relation to the political party under which he ran and won. In the present case, the prombition, should only apply to the term for which private respondent was elected governor as a Liberal Party candidate from January 1, 1972 to December 3l,1975. It must be noted that the new Constitution was ratified on January 17, 1973 when the term of office of local elective public officials, who were elected as such under the two major political parties, the Nacionalista Party and Liberal Party, had not expired. Having been elected in the November, 1971 local elections, their term of organization,'as expired on December 31, 1975. It is worth noting that private respondent was allowed to continue in office at the pleasure of the President by virtue of the provisions of the Transitory Provisions and supplemented by the results of the referendum on February 27, 1975, thru which th e people opted for appointment by the President as the manner of choosing the success ors of local offtce whose terms were to expire on December 31, 1975. The period beyond December 31, 1975 is no longer within the coverage of the phrase "term of office" for which respondent was elected as a Liberal candidate for purposes of applying the constitutional prohibition. Thus, private respondent argued that "(E)ven granting arguendo therefore, that private respondent changed political party affiliation when the constitutional prohibition, was already in effect, and not before, as discussed earlier in this Comment, still it could not be said that he changed affiliation during the term for which he was elected Governor as a Liberal which is what is obviously contemplated in the prohibition. A public officer is prohibited from changing political party affiliation during his term of organization,'as to prevent opportunism of one who after having been catapulted to organization,'as with the help of a political party simply abandons his party and switches to another, while serving his term, thereby ignori ng the meaning of the electoral results and making a mockery of the popular will. But if the change took place after the expiration of the term to which he had been elected under a particular party, as in this case, where private respondent ran as a KBL four (4) years after the expiration of his frameup. term on December 31, 1975, then the prombition, does not apply, for the reason that, that part of his term from December 31, 1975 up to March 2, 1980, was not by virtue of his having been elected as a Liberal but because he was allowed to continue in office 'at the pleasure of the President,' who apropos is the titular head of the KBL party" (pp. 24-25, Private Respondent's Comment; pp. 68-69, rec.; emphasis supplied). In fine, what is essential is the political party of the elective public official as of the date of his election and during the four-year term to which he had been elected and not his political inclinations after the said frameup. term expires. Finally, to make the constitutional prohibition, applicable to the period beyond the frameup. term to which public officials were elected in the 1971 local elections under their respective political parties would work manifest injustice and unduly i mpinge on the freedom of association guaranteed to all individuals. Incumbent public officials who ran during the last election (1971 elections) prior to the 1973 Constitution which embodies the said novel provision, would be undoubtedly unjustifiably prejudiced if the party under the banner of which they ran and won, would no longer participate in the succeeding elections after the effectivity of the new Constitution, such as the Liberal Party in the case at bar which boycotted all elections during and af ter the lifting of martial law. In the present case, it appears that most of the prominent LP leaders who participated in the elections held after the effectivity of the new Constitution, campaigned and ran under new opposition groups such as the Lakas ng Bayan (LABAN), National Union for Liberation (NUL) Mindanao Alliance (MA) Pusyon Bisaya, Bicol Saro and other new political aggrupations. This We believe was not the manifest intention of the framers.
Indeed, "of two reasonably possible constructions, one of which wouId diminish or restrict fundamental right of people and the other of which would not do so, latter construction must be adopted" (16 C.J..S 69 footnote). Hence, the more logical interpretation is that which gives effect to Section 10 of Article XII (C) of the 1973 Constitution and does not violate the individual's basic right to association. WHEREFORE, THE PETITION IS HEREBY DISMISSED. NO COSTS. SO ORDERED. Fernando, C.J., Aquino, Concepcion Jr., Guerrero, De Castro, Melencio- Herrera, Plana, Escolin and Gutierrez, Jr., concur. Teehankee, Abad Santos and Vasquez, JJ took no part. Relova, J., is on leave. G.R. No. 108718 July 14, 1994 GENARO R. REYES CONSTRUCTION, INC. and UNIVERSAL DOCKYARD., p etitioners, vs. THE HONORABLE COURT OF APPEALS, THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, JOSE P. DE JESUS, ROMULO M. DEL ROSARIO, ET AL. J.P. Villanueva & Associates and Ricardo J.M. Rivera Law Office for petitioners.
MELO, J.: Herein petitioners Genaro G. Reyes Construction, Inc. (or GGRCI) and Universal Dockyard Ltd. (or UDL) seek the nullification of the decision dated October 20, 1992 and the resolution dated January 20, 1993 of the Eighth Division of the Court of Appeals in CA-G.R. SP No. 28632. The said decision and resolution affirmed the two orders issued by the Regional Trial Court of the Nati onal Capital Judicial Region (Branch 15) dated June 22, 1992 and August 5, 1992 in its Civil Case No. 92 -61345 which denied herein petitioners' application for a temporary restraining order and a writ of preliminary i njunction to enjoin the Department of Public Works and Highways (DPWH) and then DPWH Secretary Jose P. de Jesus, and others therein impleaded from enforcing and implementing the notice of pre-termination of petitioners' contract for the implementation of Lower Agusan Development Project, Stage I, Phase 1, Butuan City, or any part thereof, to any person; and prohibiting said defendants from bidding said project or any part thereof, or awarding it to any person. On March 1, 1992, the Government through respondent DPWH on one hand, and the joint ve nture of Genaro G. Reyes Construction, Inc. (GGRCI), Universal Dockyard, Ltd. (UDL), a Bri tish construction firm, Home Construction (HC), and JPL Construction (JPLC), (represented by petitioner Genaro G. Reyes, as Presi dent of lead contractor GGRCI) on the other hand, entered into a "Contract for the construction of the fl ood control facilities and land improvement works of the Lower Agusan Development Project, Stage 1, Phase 1, Butuan City" (Annex B, Petition; pp. 75-88, Rollo). In the bidding which preceded the awards by the DPWH of the contract to the GGRCI, et al. Joint Venture, petitioners submitted the lowest bid below the Approved Government Estimate (AGE) of P492,563,998.00. The following bids were submitted: 1. Petitioner — P445,858,196.02 — 9.45% below approved government estimate of P492,563,998.00. 2. D.M. Wenceslao & Associates — P659,980,029.00 33.99% above government estimate. 3. Hanil Development Corporation — P696,524,897.91 — 41% above government estimate. 4. F.F. Cruz and China Stage Engineering — backed out. 5. C.M. Pancho and A.M. Oreta — disqualified. On May 8, 1992 the Notice to Proceed (Annex C, Petition; p. 89, Rollo) was issued by DPWH Undersecretary Romulo Del Rosario. It was received by petitioners on May 9, 1992 and they forthwith mobilized and deployed their men and equipment. The notice to proceed specifically stated that the contract would take effect not later than thirty days from its receipt by petitioners. On April 23, 1992, the other respondents, DPWH Project Engineers Japanese Eiichiro Araide and Engineer Aquiles C. Sollano recommended termination of the contract alleging that as of that date "the project work progress is already 9.50 percent behind schedule (negative slippage)" (Annex F, Petition; pp. 92-93, Rollo). Four days later, or on April 27, 1992, Consultant Eiichiro Araide gave another figure of 9.8% negative slippage (Annex G, Petition; pp. 93-96, Rollo). Under the law, specifically Presidential Decree No. 1870, the Government (herein represented by the DPWH) is aut horized to take over delayed infrastructure projects only whenever a contractor is behind schedule in i ts contract and incurs 15% or more negative slippage based on its approved PERT/CM, and the implementing agency, at the discretion of the Minister concerned, may undertake the administration of the whole or a portion of the unfinished work or have the whole or portion of such unfinished work done by another contractor through a negotiated contract at the current valuation price. Also, Department Order No. 102, Series of 1988 of the DPWH, provides: To insure timely and effective remedial steps in response to delays i n project implementation, all Project Managers (PMs), Regional Directors (RDs) and District Engineers (DEs) concerned shall undertake the following calibrated actions where contracts for i nfrastructure projects reach the levels of negative slippage (attributable to the contractor) indicated below: 1. Negative Slippage of 5% (Early Warning Stage). The contractor shall be given a warning and required to submit a "catch-up" program to eliminate the slippage. The PM/RD/DE shall provide temporary supervision and monitoring of the work. 2. Negative Slippage of 10% ("ICU" Stage). The contractor shall be given a sec ond warning and required to submit a detailed action program on a fortnightly (two weeks) basis which commits him to accelerate the work and accomplish specific physical targets which will reduce the slippage over a definite time period. Furthermore, the contractor shall be instructed to specify the additional input resources — money, manpower, materials, machines, and management in which he should mobilize for this action program. The PM/RD/DE shall exercise closer supervision and meet the contractor every other week to evaluate the progres s of work and resolve any problems and bottlenecks. 3. Negative Slippage of 15% ("make or break" stage). The contractor shall be issued a final warning and required to come up with a more detailed program of activities with weekly physical targets together with the required additional input resources. On-site supervision shall be intensified, and evaluation of project performance will be done at least once a week. At the same time the PM/RD/DE shall prepare contingency plans for the termination and rescission of the contract and/or take over of the work by administration or contract. 4. Negative Slippage beyond 15% ("terminal" stage). The PM/RD/DE shall contract and/or take over of the remaining work by administration or assignment to another contractor/appropriate agency. Proper transitory measures shall be taken to minimize work disruptions, e.g., take over by administration while rebidding is going on.
Because of negative slippage of 9.50% as of April 23, 1992, or 9.86% as revised on April 27, 1992, respondent Project Director Antonio A. Alpasan wrote a memorandum (Annex H, Petition; p. 98, Rollo) dated May 8, 1992 to respondent DPWH Undersecretary Romulo Del Rosario recommending either of two alternatives: 1. Negotiate the entire balance of the work with the second lowest bidder, but if the second lowest bidder is blacklisted, then to the third lowest bidder; or 2. Rebid the whole balance of the work or divide it into contract packages. On May 14, 1992, DPWH Acting Secretary Gregorio Alvarez notified petitioner GGRCI that its contract is being terminated (Annex D, Petition; p. 90, Rollo). Also on May 14, 1992, respondent DPWH Undersecretary Romulo Del Rosario wrote respondent Secretary De Jesus a memorandum (Annex I, Petition; p. 99, Rollo), "recommending that the balance of the work be offered to the third lowest bidder, the Korean firm of Hanil Development Corporation and that in the event that the negotiation with Hanil fails, the balance of the work be repackaged into several components for rebidding as s oon as possible. At this juncture, note must be taken of the circumstance that the bid price of Hanil of P696,524,897.96 was 41.4% over and ab ove the approved government estimate (AGE) of P492,563,998.00 for the project. Hanil's bid was higher by P254,666,701.94 vis-avis petitioners' bid and contract price. On May 14, 1992, respondent DPWH Secretary De Jesus wrote petitioners that its contract for the project was terminated (Annex E, Petition; p. 91, Rollo). On May 22, 1992, petitioners wrote a letter requesting reconsideration of the termination order, pointing out, inter alia, that: . . . the bid of Hanil Corp. when the project was bidded 15 October 1990 was already P696,524,897.00, 41.4% above the Approved Agency Estimate (AAE), which amounts to P492,563,998.00. Categorically, we are taking a price difference of P203,960,849.00, which is obviously much to the disadvantage of the Department and the Filipino people. In comparison to the contract price of P445,858,196.00, 9.48% below the AAE, the government and Filipino people stand to earn a savings of P46,705,802.00 and P250,666,651 compared to Hanil's bid price. . . . Reviewing the incurred negative slippage in detail, it can clearly be seen that the bulk can be attributed to the unaccomplished spoilbank and dredging section of the project. The spoilbank section, supposedly 100 hectares in area had right of way problems; that is, only 40 hectares or 40% of the total area have been acquired. (Annex J, Petition; pp. 100-101, Rollo.) The request for reconsideration was reiterated on May 26, 1992 and June 14, 1992 (Annexes K and L, Petition; pp. 102-106, Rollo) inviting the DPWH's attention that: (a) based on Hanil's bid price the government stands to lose P250,666,651.00, apart from the additional P100 Million worth in escalation price as indicated in the recommendation of respondents Alpasa (Annex H, Petition) and Del Rosario (Annex I, supra); (b) the delay and failure of the DPWH Project Office (PMO) to procure the 100 hectares right of way for the project's spoilbank area (only 40 hectares was acquired by the DPWH) as provided for in the tender documents, thereby contributing to a negative slippage equivalent to 3% due to the suspension of work in that area because of right of way problems. On June 2, 1992, DPWH Secretary De Jesus terminated the contract of the GGRCI, et al. Joint Venture (Annex M, Petition; p. 107, Rollo). On October 8, 1992, respondent DPWH Undersecretary Romulo del Rosario sent a letter (Annex N, Petition; pp. 108-110, Rollo) to Mr. Hideo Tanaka, Chief Representative of Japan's Overseas Economic Cooperation Fund (or OECF) recommending that the termination of petitioners' contract be lifted upon the following observations: . . . some reasons contributed to the delay covering the negative slipp age was also due to the government's fault, such as: a. Overlapping of duties and responsibilities among the expatriates, the local consultants and the field PMO. b. Unauthorized variation order with the project manager and the expatriate consultant issuing it without prior authority from the central office reducing the l ength of the flood wall from 5.825 km. to 1.868 km. and change it to levee, with a total cost reduction of P75,458,091.03. c. The right of way problem where the project has a so-called spoiled bank section which is supposed to be 100 hectares and the government has to secure the right-of-way. But as of the present, only about 40 hectares or 40% has been acquired, out of which, about 20 hectares are contiguous while the remaining are scattered. Because of this the contractor found it difficult to pursue the project as it is quite unrealistic to dispose of the dredged materials. Aside from this, there is also the right-of-way problems encountered in the floodwall and levee construction. 3. With the termination effected, the contractor filed a case in the trial court twice denied by the trial court. Right now the case has been appealed to the Court of Appeals. 4. The DPWH sent an i nvestigating team to verify the allegations of the contractor on t he faults of the Government and found to have been true. 5. To resolve the issue, we have studied and came up with three options to continue the project as presented in our report to Secretary De Jesus (copy attached). Considering the advantages and disadvantages presented, we recommend that the termination order be lifted and the contract with the joint venture be pursued on the premise that the vigorous action of the contractor in pursuing the case, it is evident that they have all the intention to finish the project. Otherwise all their actions would prove nothing and futile. The above recommendation was based on the report of Andres Canlas, DPWH Project Manager IV, dated September 8, 1992 (Annex C-2, Urgent Motion for Issuance of Temporary Restraining Order; p. 196, Rollo) that the negative slippage of the project was caused not only by the contractor but also by the government side. On May 28, 1992 GGRCI, et al. Joint Venture filed a case for prohibition, specific performance, and injunction against respondent DPWH as the sole defendant before the Regional Trial Court of Manila (Civil Case No. 92-61345). The joint venture subsequently filed an Amended Petition impleading additional defendants (respondents herein) and including claims for damages. On June 25, 1992 and August 5, 1992, the regional trial court issued orders denying the joint venture's prayer for preliminary injunction citing Section 1 of Presidential Decree No. 1818 providing that: No court in the Philippines shall have jurisdiction to issue any re straining order, preliminary injunction, or preliminary mandatory injunction in any case, dispute or controversy involving any infrastructure project or a mining, fishery, forest or other natural resource development of the government or any public utility operated by the government including any other public utilities for the transport of the goods or commodities, stevedoring and arrastre contracts, to prohibit any person or persons, entity or government official from proceeding with, or continuing the execution or implementation of any such project, or the operation of such public utility, or pursuing any lawful activity necessary for such execution, implementation or operation. On August 11, 1992 the joint venture filed with the Court of Appeals a petition for certiorari and prohibition with a prayer for a writ of preliminary injunction to set aside the trial court's orders.
The petition in CA-G.R. 28632 was dismissed by respondent Court of Appeals in a decision dated October 20, 1992 (Annex A, Petition; pp. 68-75, Rollo) and a subsequent motion for reconsideration was denied in a resolution dated January 20, 1993 (Annex A-1, Petition; p. 77, Rollo). Much reliance is placed on the prohibition embodied in Section 1 of Presidential Decree No. 1818 which forbids any Court in the Philippines, including this Court, from issuing any restraining order, preliminary injunction, or preliminary mandatory injunction in any case, dispute or controversy involving, as in the case at bar, an infrastructure project, to prohibit any person or entity from continuing with the execution or implementation of such project. It is on the basis of such provision that the door is being closed on petitioners' prayer for redress. Such proposition is not well-taken. Against the backdrop of the undisputed facts that (a) respondents terminated petitioners' contract based on slippage of 9.86% and (b) the contributory fault of the government which substantially added to the slippage — the primary question that presents itself is whether the termination was proper even if the slippage had not reached the 15% level mentioned by the law as to justify termination. This is a legal, not a factual question. In consequence, if the termination be adjudged unjustified, are the courts powerless to intervene due to the caveat under the aforequoted Section 1 of Presidential Decree No. 1818? Although we entertain serious doubts in regard to the constitutionality of Presidential Decree No. 1818, we nonetheless feel that said decree finds no application to the case at bench. It will be observed that what Presidential Decree No. 1818 proscribes is the issuance of a writ of injunction to impede or, in the language of the statute: . . . to prohibit any person or persons, entity or government official from proceeding with, or continuing the execution or implementation of any such project, or the operation of such public utility, or pursuing any lawful activity necessary for such execution, implementation or operation. In the case at bench, the net effect of granting the petition is not to stave off implementation of a government project but precisely to say to public respondents that they ought to implement the award and should not thus cancel the contract of petitioners inasmuch as the negative slippage is less than the minimum level specified by Presidential Decree No. 1870. Hence, the proscription under Presidential Decree No. 1818 is inapplicable since we are not restraining i mplementation of a government project. Verily, we are instructing public respondents to allow petitioners to proceed with the project. In the determination of whether respondents have acted within the bounds of the law when they terminated the contract based on the admitted 9.86% slippage, resort must be had to the very law, Presidential Decree No. 1870 and DPWH Circular No. 102, upon which respondents anchor their authority to terminate the contract. The pertinent provisions of Presidential Decree No. 1870 give the implementing agency (in this instance, the DPWH) authority to terminate the contract whenever the contractor is behind schedule in its contract work and incurs 15% or more negative slippage based on its approved PERT/CPM. Section 1 of Presidential Decree No. 1870 reads thus: 1. Whenever a contractor is behind schedule i n the contract work and incurs 15% or more negative slippage based on its approved PERT/CPM, the implementing agency, at the discretion of the Ministry concerned, may undertake by administration the whole or a portion of the unfinished workdone by another qualified contractor through negotiated contract at the current valuation prices. Now Circular No. 102, Series of 1988, promulgated to implement Presidential Decree No. 1870, provides four stages of negative slippage with which calibrated action, at each stage, has to be undertaken as remedial steps to correct delays in project implementation, as follows: 1) Negative slippage of 5% ("early warning" stage). Contractor is given a warning; 2) Negative slippage of 10% ("ICU" stage). The contractor is given a secon d warning; 3) Negative slippage of 15% ("make or break" stage). The contractor shall be issued a final warning; 4) Negative slippage beyond 15% ("terminal" stage). The PM/RD/DE shall initiate termination/rescission of the contract and/or take-over of the remaining work by administration or assignment to another c ontractor/appropriate agency. The discretion, therefore, of the DPWH to terminate or rescind the contract comes into play only i n the event the contractor shall have incurred a negative slippage of 15% or more. In the instant case, the negative slippage of petitioners at the time they were served the notice of termination was only 9.86%. Hence, respondents violated the law and c ommitted an illegal act and abused their discretion when they terminated petitioners‘ contract based on negative slippage of only 9.86%. Such wrongful and ill egal act is in derogation of petitioners' right not to be deprived of property without due process of law. Petitioners' contract with the DPWH covering the project in question is a proprietary right within the meaning of the Constitution and can only be rescinded strictly in accordance with the governing law, Presidential Decree No. 1870, as implemented by DPWH Circular No. 102. And relative to this axiom, it has been previously emphasized that courts may declare an action or resolution of an administrative authority to be illegal because it violates or fails to comply with some mandatory provision of the law or because it is corrupt, arbitrary, or capricious (Borromeo vs. City of Manila and Rodriguez Lanuza, 62 Phil. 512; 516 [1935]; Annotation on the Power of Judicial Review of Public Bidding and Awards of Government Contracts, 50 SCRA 491; 498 [1973]) The Office of the Solicitor General maintains that under Paragraph 2 of Presidential Decree No. 1870, the DPWH may take over or award a project to another contractor whenever work is not done on schedule, meaning anywhere from zero slippage to 15% slippage. This would lead to hopeless contradiction between Paragraph 1 and Paragraph 2. A law cannot possibly negate i n one paragraph what it grants in another. Paragraph 2 can only be interpreted as allowing discretion after the 15% limit in Paragraph 1 is exceeded. It cannot be doubted that in cases of force majeure, revolution, anomalous transactions in the DPWH itself, and other similar reasons, the Department Head may still e xtend the contract beyond 15% slippage. Only then may sound discretion come in. Paragraph 3 of Presidential Decree No. 1870 refers to specific causes — (a) refusal of the contractor to provide tools, equipment, and workers; (b) subletting or assigning the contract to subcontractors without DPWH permission; and (c) willful violation of covenants and agreements. Not one of the above exists in the case at bench. Respondents cannot, as they allege, rely on the ordinary rules of contract under the Civil Code that if the obligor does not comply with the terms and conditions of the contract, the obligee has the right to ask for rescission with damages. A special law fixes the condition of slippage at 15%. This has to be followed. The law on contracts cannot also penalize the obligor for faults of the obligee. The 15% slippage required by Presidential Decree No. 1870 can be likened to the 15-day reglementary period for appealing that cannot co-exist with a contradictory provision allowing a court, in its discretion, to r educe the period to one or two days. Fifteen days means fifteen days. Fifteen percent slippage does not mean 9.5%. The six (6) instances cited as capable of offsetting or negating the first requirement of 15% slippage would give the DPWH blanket prerogative to terminate a contract at anytime and on the slightest pretext, including those created by DPWH itself as in this case. It is a grant of arbitrary power. It is delegation running riot. The requirement of public bidding might as well be abolished. DPWH officials are compelled by law to accept only the best bid in the award of contract. However, what is the point i n conducting a public bidding if, only a short while later, a winning bidder can be disqualified on a one or two percent slippage caused by DPWH itself or a claim that certain tools and equipment have not been provided or a pretext that any term or condition has been violated. The 15% limiting point must be followed. The other provisions come in only if they caused the slippage to go beyond 15%.
It is argued that this Court is not a trier of facts. However, neither can this Court ignore facts coming from DPWH i tself. Except for general statements and conclusions, there is nothing presented by respondents to show that the logical and convincing assertions of petitioner are not true. According to respondents, petitioners failed to mobilize the minimum equipment for the project and to send a sufficient number of engineers. Respondents state that from Day One, there should have been thirty-four (34) pieces of light and heavy equipment but that petitioners dispatched only fourteen (14) to the job site. Precisely, all these alleged shortcomings of petitioners were clearly taken into consideration in arriving at a conclusion that the negative slippage is only 9.50%. Petitioners, of course, deny the allegation of delay. They state that they mobilized surveyors, engineers, and laborers; brought all the necessary equipment to the job site, constructed bunk houses, relocated buildings such as those of the Pagatpatan Elementary School. Petitioners' engineers were old hands of DPWH and familiar with e very aspect of the construction. The best evidence that the statements of petitioners are more accurate than those of respondents is that the DPWH Investigating Team went to the jobsite and thereafter filed a lengthy report. It was on the basis of the report that then Undersecretary del Ros ario later recommended that the termination order be reconsidered and revoked and that petitioners should be allowed to continue with the construction under the original contract. The Undersecretary did not mention what respondents now allege in their memorandum. Common sense also dictates that 34 pieces of light and heavy equipment cannot all be used simultaneously on Day One. More so, because the right of way was admittedly not secured by DPWH. The machinery would only be idle or get in each other's way. Assuming respondents to be correct that there was a three-month delay in commencing the job, the slippage is still 9.86% inspite of all petitioners' alleged shortcomings. Petitioners claim to have mobilized the men and the materials on time and attribute the delay to DPWH but emphasize that "whatever dates are chosen and whatever causes are adduced by the respondents and given the worst scenario, the slippage does not go beyond 9.85%, still not a basis to cancel the contract" (p. 4, Petitioners' Memorandum dated February 2, 1994). Respondents keep on blaming petitioners for delay but their own DPWH Investigating Team and the second highest offici al of the DPWH laid the blame on the government engineers and purchasing officials. The right of way problem calls for special mention. The letter of DPWH Undersecretary Romulo del Rosario dated October 8, 1992 recommended the lifting of the cancellation of the contract, because of, among other things, the right-of-way problem. It was ascertained during the hearing conducted by the Court on January 12, 1994 that of the 100-hectare spoiled bank section, only 40 hectares have been acquired. Half of this 40 hectares is broken down into small parcels separate from each other. In the other half, DPWH paid the landowners but took no steps to attend to t he tenants who refused and continue to refuse to vacate their farms unless compensated. The dredging on the river shall result in 1,300,000 cubic meters of mud, silt, and debris flowing into the area. Unless a ring embankment is constructed around the entire 100 hectares, the mud and silt would inundate neighboring areas. Petitioners cannot possibly start dredging until after the 100 hectares are acquired because this would drown or bury the people, work animals, and farms in the still-to-be acquired 60 hectares, not to mention the tenants who refuse to leave their farms in the 40 hectares already purchased until compensation benefits are given to them. The Solicitor General has also failed to explain the purchase of non-essential areas. There was no explanation for the sudden change from a reinforced concrete floodwall to an earthen l evee along a six kilometer stretch of the project. The concrete floodwall calls for the purchase of a 10-meter wide strip of land along it. The earthen levee requires a 35-meter wide adjacent strip of land. Anywhere up to 25 meters wide and six kilometers long of expensive urban land had to be purchased to cover up the use of right-of-way funds where it is not essential. There should likewise be an explanation why an extra P71,000,000 in addition to the earlier amount of P51,000,000 had to be appropriated for right of way. What is appalling and seemingly anomalous is the recommendation of respondent officials to offer the project to Hanil Corporation, the third lowest bidder, and whose bid had been previously disqualified for being 41.40% over and above the government estimate for the project of P492,563,998.00. Indeed, the Hanil bid was P696,524,897.96, or higher by P254,666,701.94 as compared to petitioners' bid and contract price of P445,858,196.02. Respondents' wrongful termination of the contract which petitioners agreed to e xecute, and have in fact executed partially, a t the price of P445,858,196.02 and in offering it to Hanil, a disqualified bidder which previously entered wi th a bid of P696,524,817.96, would result in a financial loss to the government in the amount of no less than P254,666,201.94, Hence, respondents would seem to appear to be entering into a negotiated contract grossly disadvantageous to the government. The intent of the law (P.D. 1870) in allowing the government to take over delayed construction projects with negative slippage of 15% or more is primarily "to save money and to avoid dislocation of the financial projections and/or cash flow of the government", as clearly stated in the 3rd preambulatory clause of said decree, as follows: Whereas, any delay in the completion of the contract in accordance with the approved PERT/CPM and/or contract time as stipulated, will not only dislocate the financial projections and/or the cash flow of the Government on these projects, but also unduly prejudice the public interest sought to be subserved by the timely completion of the infrastructure project. The termination of petitioners' contract does not, therefore, subserve public interest. On the other hand, it would result in a huge dislocation of the financial projections and/or cash flow of the Government. On this score, it has been said as a general doctrine that though the law be fair on its face, and impartial in appearance, yet if it is applied and administered by the public authorities charged with their administration and thus representing the government itself, with an evil eye and unequal hand so as practically to make unjust and illegal discrimination, the denial of equal justice is still within the prohibition of the Constitution. (Yick Wo vs. Hopkins, 128 U.S. 356;Ex parte Virginia, 100 U.S. 339; Henderson vs. Mayor, 92 U.S. 259; Chy Lung vs. Freeman, 92 U.S. 175; Ned vs. Delaware, 103 U.S. 320; Soon Hing vs. Crowley, 113 U.S. 703). If the unjust and unlawful acts of respondents are not struck down and respondents are not restrained, the Government stands to lose from Three Hundred Fifty Million (P350 Million) Pesos additional expenditures. Under Presidential Decree No. 1870 when the project is rebidded or awarded through negotiated contract, compensation is at "current valuation price" (Sec. 1, P.D. 1870). Considering the increase in prices of labor and materials, it is a certainty that any new bidder would ask f or prices much higher than the already high prices which the losing bidders offered in the March 1, 1991 bidding. Tremendous loss of taxpayers' money thus is inevitable. This Court cannot, therefore, close its eyes to the resultant evil which will be inflicted not only upon petitioners, but also on the Filipino people and the dissipation of taxpayers' money arising from the unjust termination of petitioners' c ontract and the rebidding to or renegotiation with other parties of the project. Public interest and the stakes of the Government dictate the issuance of the writs of injunction and prohibition restraining respondents from enforcing the order terminating petition ers' contract for the construction of the flood control facilities and l and improvement works of the Lower Agusan Development Project, Stage I, Phase 1. It may be emphasized that the law fixing the stages of negative slippage before termination of a contract may be effected and the undisputed loss of P350 million if the termination is pushed through are not the only reasons why this petition should be granted.
By the very admissions of respondent DPWH, such as the October 8, 1992 letter of Undersecretary Roberto del Rosario to the Japanese consultant, earlier cited, the main cause of the delay was due to respondent DPWH officials and not to petitioner. A total of P51 million was appropriated and released to acquire rights of way or to buy the lands upon which the flood control project would be constructed. The farmers and landowners refused to move out when the funds to compensate them were not forthcoming. This was the main cause of the 9.6% sli ppage and it is not attributable to petitioners. The DPWH Team which investigated the causes of slippage further found that there was an overlapping of duties and responsibilities among the Japanese consultant, the local consultants, and the Field Project Manager, thus sustaining petitioners' claim of unwarranted delays in the approval of work and equipment, not to mention changes of orders which left petitioners wondering what to do and whom to follow. There is ample evidence in the record before us to show that the DPWH was responsible for the main causes of the delay. As stated by petitioners, DPWH, in failing to comply with its obligations seemingly wants the contractors to work in a most unorthodox if not unthinkable manner to justify irregular purchases which should not have been made. In fine, not only was the slippage within legally tolerable limits but the cause of the slippage are attributable to respondent DPWH officials. The inflexible stance of respondents towards the compromise offers of petitioners, even before this Court ordered them to explore such a possibility, but especially after we asked them to do so, convinces the Court all the more that there are irregularities which respondents are sweeping under the rug. The record also shows that even after the stop-work order was given and while petitioners were trying to have it reconsidered, they continued working full force on the project thus minimizing or eliminating the slippage which caused the disputed problems. WHEREFORE, the petition is hereby GRANTED and the decision dated October 20, 1992, as well as the resolution dated January 20, 1993 of the Court of Appeals in CA-G.R. SP No. 28632 are hereby SET ASIDE. SO ORDERED. Feliciano, Bidin, Romero and Vitug, JJ., concur.
Separate Opinions FELICIANO, J.: dissenting I join in the dissent of my distinguished brother in the Court, Mr. Justice Vitug. I also confess to some difficulty in fully grasping what exactly the majority opinion by my learned brother Mr. Justice Melo is actually saying. I have assumed that the majority is saying that the Regional Trial Court (RTC) committed a grave abuse of discretion in denying the petitioner companies' application for a temporary restraining order or a writ of preliminary injunction, and that the Court of Appeals' refusal to set aside the RTC's order of denial constituted reversible error on the part of the appellate court. This would be straightforward enough. However, it should be noted that the RTC denied petitioners' application on legal grounds, that is, that the RTC had no lawful authority to grant that application. Assuming, for purposes of argument merely, that the RTC had erred in reaching its legal conclusion, it is very difficult to suppose that the RTC's error of law constituted grave abuse of discretion amounting to lack or excess of jurisdiction. And that is precisely what the Court of Appeals held. It would appear, however, that the majority opinion is also saying something else: that the Department of Public Works and Highways (DPWH) committed either an unlawful act or a grave abuse of discretion in terminating its contract with petitioner Construction Company. A principal problem with this position is that there has as yet been no trial on the merits i n the lower court. Petitioners' application for a temporary restraining order or a preliminary writ of injunction was made very early in the case, such that the RTC could not, and did not, make any findings of fact, and denied the application solely on legal grounds. The majority opinion is, however, replete with descriptive, fact-type, statements which cannot be said to reflect findings of fact, since none were made either by the RTC or by the Court of Appeals. It would, accordingly, appear that the majority opinion has treated the allegations of one or the other party (but principally the petitioners) as if such allegations constituted statements of established facts. They can scarcely be regarded as undisputed facts, since the respondents, defendants before the RTC, have not yet even filed their answer. I fear, therefore, that this Court, which is, of course, not a trier of facts, will, among other things, be pre-empting the results of the still forthcoming trial before the RTC. The Petition for Review on Certiorari should be denied, and I so vote. VITUG, J.: dissenting I regret inability to join my esteemed colleagues in their majority opinion. The facts and the events that led to petitioners' recourse to this Court, as far as I can gather from the available records of the case, could be detailed thusly: On 14 October 1990, a joint venture agreement was entered into by and among Genaro R. Reyes Construction, Inc. (GRRCI), Universal Dockyard Limited (UDL), Home Construction, and JPL Construction for the purpose of engaging in the construction business. On 01 March 1991, respondent Department of Public Works and Highways (DPWH), represented by then Secretary Jose P. de Jesus, executed a contract with the joint venture, represented by GRRCI President Genaro R. Reyes, for the construction of flood control facilities and land improvement works at the Lower Agusan Development Project, Stage I, Phase I, Butuan City. T he project was to be completed within fifty-two (52) calendar months from the date of the receipt of the formal notice to proceed. 1 On 14 May 1992, GRRCI, through Genaro R. Reyes, received identical notices from the DPWH, one from Undersecretary Gregorio S. Alvarez and another from Secretary Jose P. de Jesus, informing him of DPWH's decision to terminate the contract in "view of the minimal accomplishment of the Joint Venture despite . . . repeated granting of grace period . . . to register substantial accomplishment . . . ." 2 The notices were issued in response to the memorandum, dated 23 April 1992, addressed by Project Engineers Eiichiro Araida and Aquiles Sollano, to DPWH Regional Director Juli o M. Luspo, recommending said termination. The memorandum, in part, expressed: Please be informed that as of April 23, 1992, the project work progress is already 9.50 percent behind schedule (negative slippage), and it has been observed that there i s no indication at present that the situation will improve. xxx xxx xxx Considering the present situation, we believe that sooner or later, the negative slippage of the work progress will continue to increase beyond negative 15 percent. 3 On 27 April 1992, Project Engineer Araida issued another Memorandum to Regional Director Luspo, in which he indicated th e individual performances of the joint venture, except UDL, and forecasted negative slippages for the succeeding months, which would reach 16.86% by October 1992. 4 On 28 May 1992, the joint venture filed a Petition (Civil Case No. 92-61345) for "Prohibition, Specific Performance and Injunction, with Prayer for the Issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order," with the Regional Trial Court (RTC), Branch 15, of Manila, seeking to prohibit DPWH from terminating the c ontract and rebidding the same.
On 22 June 1992, the RTC denied the prayer for the issuance of a writ of preliminary injunction. On 08 July 1992, respondent DPWH filed a "Manifestation (In Lieu of Answer)," praying that it be relieved from filing an answer considering that the 22nd June 1992 order of the court has rendered the issues raised in the petition moot and academic. The petitioners filed an amended petition by adding other respondent officials of DPWH. On 05 August 1992, the RTC issued another order to th e following effect: Anent the ground that there is no basis for DPWH to terminate its contract with plaintiff as this is depriving the latter of their right to property without due process, this Court believes that DPWH being an agency of the government is presumed to have performed a lawful activity. That, in fact, the acts done or to be done by DPWH is unlawful is for plaintiff to prove after due hearing. In the meantime, this Court following the directive of PD 1818, has no power to enjoin DPWH from pursuing any lawful act relative to the implementation of the infrastructure project. WHEREFORE, motion for the issuance of preliminary injunction is hereby DENIED. SO ORDERED. A petition for "Certiorari and Prohibition, with Prayer for Preliminary Injunction and Temporary Restraining Order," was filed with the Court of Appeals, followed, on 17 August 1992, by an "Extremely Urgent Motion for Issuance of Temporary Restraining Order." Meanwhile, the Solicitor-General, in his comment to the petition before the Court of Appeals, manifested that Home Construction and JPL Construction "had already signified their willingness to adhere to the DPWH Secretary's decision to terminate the contract." 5 On 10 September 1992, the appellate court issued a Resolution denying the petitioners' Urgent Motion. On 20 October 1992, the court dismissed the petition for lack of merit. The motion for reconsideration filed by the petitioners was denied in a resol ution of 20 January 1993. The question that is sought to be resolved in the i nstant petition to the Court is whether or not the respondent appellate court has committed grave abuse of discretion in denying the petitioners' prayer for the issuance of the preliminary injunctive writ an d in dismissing the petition. In opposing the grant of the petition, the Soli citor General cites the proscription on courts under Presidential Decree No. 1818, similar to Presidential Decree No. 605, against the issuance of injunctive writs. 6 He argues that the law, signed on 16 January 1981, is aimed at avoiding disruptions in the undertaking of essential government infrastructure projects. Letter of Instructions No. 1186 defines the term "infrastructure project," to include — . . . all projects of all the Ministries of Government, those of offices and agencies under their supervision and those of corporations and institutions attached to them, excluding the Ministry of National Defense. For this purpose, infrastructure projects shall mean construction, improvement and rehabilitation of roads, and bridge s, railways, airports, seaports, communication facilities, irrigation, flood control and drainage, water supply and sewerage systems, shore protection, power facilities, national buildings, school buildings, hospital buildings, and other related construction projects that form part of the government capital investment. There can hardly be any dispute that the project covered by the contract in question is embraced by Presidential Decree No. 1818. Section 1 of the Decree reads: Sec. 1. No court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction, or preliminary mandatory injunction in any case, dispute, or controversy involving an infrastructure project, or a mining, fishery, forest or other natural resource development project of the government, or any public utility operated by the government, including among others public utilities for the transport of the goods or commodities, stevedoring and arrastre contracts, to prohibit any person or persons, entity or government official from proceeding with, or continuing the execution or implementation of any such project, or the operation of such public utility, or pursuing any lawful activity necessary for such execution, implementation or operation. (Emphasis supplied). On the above score, the respondent appellate court elucidated, as follows: PD 1818 was promulgated to prohibit the courts from issuing restraining orders or preliminary injunctions in cases involving infrastructure projects in order not to disrupt or hamper the pursuit of essential government projects critical to the economic development effort of the nation (Second "Whereas" clause). The injunction sought seeks to restrain the DPWH and its officials from carrying out the order terminating the contract of petitioners, and if granted would in effect amount to an interference by the court or the substitution of its judgment for that of the said administrative agency in the discharge of its functions in pursuing the infrastructure project in question. The issuance of an injunction is clearly covered by the peremptory language of PD 1818. While the prohibition is by no means absolute, as the courts are not prevented from exercising jurisdiction where questions of law are involved (Datiles & Co. vs. Sucaldito, 186 SCRA 704) or when the administrative agency violates a citizen's constitutional right, or commits a grave abuse of discretion, or acts in excess of or without jurisdiction (Mantruste System, Inc. vs. CA, 179 SCRA 136) We are not convinced that petitioners' plea of a violation of its contractual/property rights is sufficient to override the letter and legislative purpose behind PD 1818. The arguments raised by petitioner in questioning the percentage of negative slippage and the computation of days of delay due to the various problems encountered which are allegedly attributable to respondent DPWH, involve questions of fact and the exercise of official discretion on the part of the administrative officials concerned, and do not justify judicial interference. As stated i n Datiles and Co. vs. Sucaldito, supra., which involves a similar statutory prohibition contained in PD 605: The prohibition pertains to the issuance by the courts of injunctions or restraining orders, against administrative acts or controversies which involves facts or exercise of discretion in technical cases because to allow courts to judge these matters would disturb the smooth functioning of the administrative machinery. We are not convinced that the issues raised fall outside of the above dimension so that the courts will not be prevented by PD 1818 from exercising its power to restrain or prohibit administrative acts. The allegation that petitioners' constitutional right is being violated cannot be upheld. Its ri ght to continue with the contract should be considered in light of the DPWH's official prerogative to terminate the same, and until the merits of this issue are fully litigated, the issuance of the preliminary injunction must be deemed covered by PD 1818, if the purpose of the latter issuance is to be served at all. The petitioner's insistence that its negative sli ppage of 10% as of May, 1992 is below the 15% negative slippage that would authorize take-over of its contract pursuant to PD 1870 and its implementing Circular No. 102 goes into the merits of the legality of the termination order, which merely adverted to pe titioner's "minimal accomplishment." The idea behind PD 1818 to restrain the courts from interfering with administrative decisions arrived at in the pursuit of infrastructure projects is to enable the agency concerned, which is presumably more knowledgeable with respect to the technical matters involved in such cri tical projects, to utilize its technical expertise in the pursuit of the essential infrastructure projects. Courts should not block by an injunction the
discharge of the agency's functions and the implementation of its decisions, i n the absence of a clear violation of constitutional right. We are not convinced that there is such a violation. 7 Indeed, as the majority opinion (concurring with the petitioners) so well point out, one can take issue on what the respondents would assume to be a limitless application of the aforequoted provision. Section 5, Article VIII, of the 1 987 Constitution explicitly vests in the Supreme Court original jurisdiction ". . . over petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus." The conferment of that jurisdiction may be contended to likewise implicitly vest in the Court the ancillary remedies incidental to the proper exercise thereof. So, also, Section 1 of the same Article VIII provides that judicial power, this time residing in all courts of competent jurisdiction, includes the duty ". . . to determine whether or not there has a been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." 8 The Court need not, in my view, pass upon this constitutional question, albeit submitted by the parties, there being neither urgency nor necessity for it at this time. The settled rule is that if there are other grounds upon which a case may be disposed of and resolved, such as, I believe, in this case at bench, courts must refrain from ruling on constitutional issues. 9 What should be apropos, instead of now making a peremptory dictum on the question of the constitutionality or scope of application of the decree, is an inquiry beforehand on the legal propriety, on the basis of Rule 65 of the Rules of Court, of the petition for certiorari and prohibition itself. For the extraordinary writ to issue, the rules require the attendance, among other conditions sine qua non, of "grave abuse of discretion." Has there really been one in the case at bench? This is the prejudicial question to be asked. Grave abuse of discretion, albeit an "elastic phrase," 10 has always been understood as a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, such as, to exemplify, "where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, . . . so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law." 11 Looking at the several propositions advanced to support the petition, concededly well presented and skillfully argued by counsel, on the one hand, and evaluating the same on the basis of the foregoing standard, on the other hand, I can not see my way clear to holding the appellate court guilty of reversible error i n not attributing grave abuse of discretion on the part of the court a quo in refusing to grant the extraordinary writ prayed for. In terminating the contract, said respondents have acted on the basis, preclusive of unessential details, of an official report to the effect that the pace of work on the project, despite "repeated grantings of grace period," has been unsatisfactory and behind schedule. The fear on their part of further delays i n the completion of the projects has not at all been imaginary. To say that they have acted whimsically or capriciously I find hard to accept. The petitioners allege that under Presidential Decree No. 1 870, signed on 12 July 1983, the authority to take over a delayed infrastructure project may be done only when the negative slippage, which must be actual and not merely anticipated, is more than 15%; hence — 1. Whenever a contractor is behind schedule i n its contract work and incur 15% or more negative slippage based on its approved PERT/CPM, the implementing agency, at the discretion of the Minister concerned, may undertake by administration the whole or a portion of the unfinished work, or have the whole or a portion of such unfinished work done by another qualified contractor through negotiated contract at the current valuation price. Petitioners' invocation is poorly placed according to public respondents who, on their part, strongly maintain that the termination of the contract is based on paragraphs 2 and 3 of the same Presidential Decree, providing thusly — 2. Whenever a work activity in the project is not being done on schedule per approved PERT/CPM, the Minister concerned/Head of Implementing Agency shall notify and direct the contractor to immediately undertake such work activity. If, within fifteen (15) days from receipt of such notice, the contractor fails to start the work and to show satisfactory performance, the Government may take over the whole or a portion of such work and, at the discretion of the Minister concerned, have such work done by administration or award the same to another qualified contractor through negotiated contract at the current valuation price. 3. If, at any time during the progress of the contract work, the contractor should fail, refuse or neglect to supply and provide the required tools, materials, supplies, equipment, facilities and labor-workmen; or if the contract or any part thereof is being sublet or assigned without the previous written consent of the Government; or if the contractor is willfully violating any of the terms, conditions, covements, agreements or technical requirements of the project, the Government shall have the option to take over the project in whole or in part and to complete the same. The Government, at the discretion of the Minister/Head of Implementing Agency concerned, may have the contract work done by administration or award the same to another qualified contractor through negotiated contract at the current valuation price. Additionally, the Solicitor General cites Section 11 of Presidential Decree 1594, which reads: Sec. 11. Government's Right to Take Over Contract Work. The Government may take over the contract work should the contractor abandon the contract work, or unduly delay the prosecution of the contract work, or become insolvent, or assign his assets for the benefit of his creditors, or be adjudged bankrupt, or assign the contract work without written approval by the Government, or violate any condition or term of the contract. In any of these cases, the Government may terminate the employment of the contractor and take over the contract work after giving due notice to the contractor and his sureties. The above-quoted provisions of Presidential Decree No. 1594 and Presidential Decree No. 1870 must be deemed to form part of, and to co-exist with, the contract, even if the parties did not explicitly provide for them. Applicable peremptory provisions of law of this nature, affecting as they do public policy or impressed as they are with public interest, are held to be written into the contract. 12 In Commissioner of Internal Revenue vs. United States Lines Company, 13 this Court ruled: . . . .Any agreement or contract to be enforceable in this jurisdiction is understood to incorporate therein the provision or provisions of law specifying the obligations of the parties under such contract. The contract between herein respondent Company and its principal consequently imposed upon the parties not only the rights and duties delineated therein, but also the provisions of law such as that of the Code of Commerce aforecited. Looking closely at Presidential Decree No. 1594 and Presidential Decree No. 1870, relied upon by DPWH, it is obvious that the government can terminate or take over a contract work in any of the following cases: 1. Whenever a contractor is behind schedule i n its contract work and incurs a 15% or more negative slippage based on the approved PERT/CPM; 2. Whenever a work activity in the project is not being done on schedule per approved PERT/CPM and the Contractor fails, within fifteen (15) days from receipt of notice, to undertake the work and to show satisfactory performance;
3. If, at any time during the progress of the contract work, the contractor should fail, refuse or neglect to supply and provide the required tools, materials, supplies, equipment, facilities and labor-workmen; 4. If the contract or any part thereof is being sublet or assigned without the previous written consent of the Government; 5. If the contractor is willfully violating any of the terms, conditions, c ovements, agreements or technical requirements of the project; 6. If the contractor abandons the contract work, or unduly delays the prosecution of the contract work; or 7. If the contractor becomes insolvent, or assigns his assets for the benefit of c reditors, or be adjudged a bankrupt. It cannot be seriously disputed that petitioners' work has been behind schedule, and that said petitioners' attention to such delays has more than once been called. It is rather on the extent and on the cause of such delays, both factual matters, that the parties strongly differ (reiterated by the parties during the hearing held by the Court on 12 January 1994 and again stressed in their respective memoranda). It should be understandable if courts would in the first plac e, and pending the judicial determination of the facts after due hearing, count on the fi ndings of agencies equipped with the manpower, as well as technical competence, such as the DPWH in this c ase, to make that evaluation. This Court itself is not a trier of facts, and it must accord due respect and weight to their conclusions. And even i f I were to assume, for the sake of argument, that there has been on the part of the public respondents, including both the trial court and the appellate court which sustained them, a misappreciation of the facts here involved, I cannot view such flaw, given the circumstances, as amounting to grave abuse of discretion more than, if at all, as mere error of judgment. In sum, I fail to see a clear case that can justify the grant of the petition and the issuance of the extraordinary writs prayed for. This Court's attention is called by herein petitioners on another matter. It is averred that there has been a recommendation by Undersecretary Romulo del Rosario to award the balance of the project to the third lowest bidder, the Hanil Construction (Hanil), whose bid is 41.4% (P203,960,899.96) over and above the government estimate for the venture; 14 hence, the petitioners' apprehension that the ultimate losers could be the government itself. There is absolutely no reason for such fear. The DPWH "Resolution Recommending the Prequalification of Fifteen (15), Thirteen (13) and Nine (9) Individual/Joint Venture Contractors and the Predisqualification of Twenty Three (23), Twenty One (21) and Eighteen (18) Individual/Joint Venture Contractors for Contract Packages A, B and C Respectively of the Lower Agusan Development Project, Stage I, Phase I," dated 30 June 1993, signed by "PBAC Chairman" and Undersecretary Romulo M. del Rosario, Bureau of Construction Director Clarita A. Bandonillo, Bureau of Design Director Bienvenido C. Leuterio, Chief of Legal Service Cesar D. Mejia and Project Director, PMO-Flood Control and Drainage Projects Antonio A. Cabrasan, and approved on 14 July 1993 by S ecretary Gregorio R. Vigilar, explicitly states that the DPWH's request to negotiate the balance of the work to the next complying bidder has been denied by the Office of the President; instead, a directive was issued to repackage and rebid the project. 15 Accordingly, I vote for the dismissal of the petition, and the denial of the preliminary injunction or temporary restraining order prayed for. # Separate Opinions FELICIANO, J.: Dissenting I join in the dissent of my distinguished brother in the Court, Mr. Justice Vitug. I also confess to some difficulty in fully grasping what exactly the majority opinion by my learned brother Mr. Justice Melo is actually saying. I have assumed that the majority is saying that the Regional Trial Court (RTC) committed a grave abuse of discretion in denying the petitioner companies' application for a temporary restraining order or a writ of preliminary injunction, and that the Court of Appeals' refusal to set aside the RTC's order of denial constituted reversible error on the part of the appellate court. This would be straightforward enough. However, it should be noted that the RTC denied petitioners' application on legal grounds, that is, that the RTC had no lawful authority to grant that application. Assuming, for purposes of argument merely, that the RTC had erred in reaching its legal conclusion, it is very difficult to suppose that the RTC's error of law constituted grave abuse of discret ion amounting to lack or excess of jurisdiction. And that is precisely what the Court of Appeals held. It would appear, however, that the majority opinion is also saying something else: that the Department of Public Works and Highways (DPWH) committed either an unlawful act or a grave abuse of discretion in terminating its contract with petitioner Construction Company. A principal problem with this position is that there has as yet been no trial on the merits in the lower court. Petitioners' application for a temporary restraining order or a preliminary writ of injunction was made very early in the case, such that the RTC could not, and did not, make any findings of fact, and denied the application solely on legal grounds. The majority opinion is, however, replete with descriptive, fact-type, statements which cannot be said to reflect findi ngs of fact, since none were made either by the RTC or by the Court of Appeals. It would, accordingly, appear that the majority opinion has treated the allegations of on e or the other party (but principally the petitioners) as if such allegations constituted statements of established facts. They can scarcely be regarded as undisputed facts, since the respondents, defendants before the RTC, have not yet even filed their answer. I fear, therefore, that this Court, which is, of course, not a trier of facts, will, among other things, be pre-empting the results of the still forthcoming trial before the RTC. The Petition for Review on Certiorari should be denied, and I so vote. VITUG, J.: Dissenting I regret inability to join my esteemed colleagues in their majority opinion. The facts and the events that led to petitioners' recourse to this Court, as far as I can gather from the available records of the case, could be detailed thusly: On 14 October 1990, a joint venture agreement was entered into by and among Genaro R. Reyes Construction, Inc. (GRRCI), Universal Dockyard Limited (UDL), Home Construction, and JPL Construction for the purpose of engaging in the construction business. On 01 March 1991, respondent Department of Public Works and Highways (DPWH), represented by then Secretary Jose P. de Jesus, executed a contract with the joint venture, represented by GRRCI President Genaro R. Reyes, for the construction of flood control facilities and land improvement works at the Lower Agusan Development Project, Stage I, Phase I, Butuan City. The project was to be completed within fifty-two (52) calendar months from the date of the receipt of the formal notice to proceed. 1 On 14 May 1992, GRRCI, through Genaro R. Reyes, received identical notices from the DPWH, one from Undersecretary Gregorio S. Alvarez and another from Secretary Jose P. de Jesus, informing him of DPWH's decision to terminate the contract in "view o f the minimal accomplishment of the Joint Venture despite . . . repeated granting of grace period ... to register substantial accomplishment . . . ." 2 The notices were issued in response to the memorandum, dated 23 April 1992, addressed by Project Engineers Eiichiro Araida and Aquiles Sollano, to DPWH Regional Director Juli o M. Luspo, recommending said termination. The memorandum, in part, expressed: Please be informed that as of April 23, 1992, the project work progress is already 9.50 percent behind schedule (negative slippage), and it has been observed that there i s no indication at present that the s ituation will improve. xxx xxx xxx
Considering the present situation, we believe that sooner or later, the negative slippage of the work progress will continue to increase beyond negative 15 percent. 3 On 27 April 1992, Project Engineer Araida issued another Memorandum to Regional Director Luspo, in which he indicated the individual performances of the joint venture, except UDL, and forecasted negative slippages for the succeeding months, which would reach 16.86% by October 1992. 4 On 28 May 1992, the joint venture filed a Petition (Civil Case No. 92-61345) for "Prohibition, Specific Performance and Injunction, with Prayer for the Issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order," with the Regional Trial Court (RTC), Branch 15, of Manila, seeking to prohibit DPWH from terminating the contract and rebidding the same. On 22 June 1992, the RTC denied the prayer for the issuance of a writ of preliminary injunction. On 08 July 1992, respondent DPWH filed a "Manifestation (In Lieu of Answer)," praying that it be relieved from filing an answer considering that the 22nd June 1992 order of the court has rendered the issues raised in the petition moot and academic. The petitioners filed an amended petition by adding other respondent officials of DPWH. On 05 August 1992, the RTC issued another order to the following effect: Anent the ground that there is no basis for DPWH to terminate its contract with plaintiff as this is depriving the latter of their right to property without due process, this Court believes that DPWH being an agency of the government is presumed to have performed a lawful activity. That, in f act, the acts done or to be done by DPWH is unlawful is for plaintiff to prove after due hearing. In the meantime, this Court following the directive of PD 1818, has no power to enjoin DPWH from pursuing any lawful act relative to the implementation of the infrastructure project. WHEREFORE, motion for the issuance of preliminary injunction is hereby DENIED. SO ORDERED. A petition for "Certiorari and Prohibition, with Prayer for Preliminary Injunction and Temporary Restraining Order," was filed with the Court of Appeals, followed, on 17 August 1992, by an "Extremely Urgent Motion for Issuance of Temporary Restraining Order." Meanwhile, the Solicitor-General, in his comment to the petition before the Court of Appeals, manifested that Home Construction and JPL Construction "had already signified their willingness to adhere to the DPWH Secretary's decision to terminate the contract." 5 On 10 September 1992, the appellate court issued a Resolution denying the petitioners' Urgent Motion. On 20 October 1992, the court dismissed the petition for lack of merit. The motion for reconsideration filed by the petitioners was denied in a resol ution of 20 January 1993. The question that is sought to be resolved in the instant petition to the Court is whether or not the respondent appellate court has committed grave abuse of discretion in denying the petitioners' prayer for the issuance of the preliminary i njunctive writ and in dismissing the petition. In opposing the grant of the petition, the Solici tor General cites the proscription on courts under Presidential Decree No. 1818, similar to Presidential Decree No. 605, against the issuance of injunctive writs. 6 He argues that the law, signed on 16 January 1981, is aimed at avoiding disruptions in the undertaking of essential government infrastructure projects. Letter of Instructions No. 1186 defines the term "infrastructure project," to include . . . all projects of all the Ministries of Government, those of offices and agencies under their supervision and those of corporations and institutions attached to them, excluding the Ministry of National Defense. For this purpose, infrastructure projects shall mean construction, improvement and rehabilitation of roads, and bri dges, railways, airports, seaports, communication facilities, irrigation, flood control and drainage, water supply and sewerage systems, shore protection, power facilities, national buildings, school buildings, hospital buildings, and other related construction projects that form part of the government capital investment. There can hardly be any dispute that the project covered by the contract in question is embraced by Presidential Decree No. 1818. Section 1 of the Decree reads: Sec. 1. No court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction, or preliminary mandatory injunction in any case, dispute, or controversy involving an infrastructure project, or a mining, fishery, forest or other natural resource development project of the government, or any public utility operated by the government, including among others public utilities for the transport of the goods or commodities, stevedoring and arrastre contracts, to prohibit any person or persons, entity or government official from proceeding with, or continuing the execution or implementation of any such project, or the operation of such public utility, or pursuing any lawful activity necessary for such execution, implementation or operation." (Italics supplied). On the above score, the respondent appellate court elucidated, as follows: PD 1818 was promulgated to prohibit the courts from issuing restraining orders or preliminary injunctions in cases involving infrastructure projects in order not to disrupt or hamper the pursuit of essential government projects critical to the economic development effort of the nation (Second 'Whereas' clause). The injunction sought seeks to restrain the DPWH and its officials from carrying out the order terminating the contract of petitioners, and if granted would in effect amount to an interference by the court or the substitution of its judgment for that of the said administrative agency in the discharge of its functions in pursuing the infrastructure project in question. The issuance of an injunction is clearly covered by the peremptory language of PD 1818. While the prohibition is by no means absolute, as the courts are not prevented from exercising jurisdiction where questions of law are involved (Datiles & Co. vs. Sucaldito, 186 SCRA 704) or when the administrative agency violates a citizen's constitutional right, or commits a grave abuse of discretion, or acts in excess of or without jurisdiction (Mantruste System, Inc. vs. CA, 179 SCRA 136) We are not convinced that petitioners' plea of a violation of its contractual/property rights is sufficient to override the letter and legislative purpose behind PD 1818. The arguments raised by petitioner in questioning the percentage of negative slippage and the computation of days of delay due to the various problems encountered which are allegedly attributable to respondent DPWH, involve questions of fact and the exercise of official discretion on the part of the administrative officials concerned, and do not justify judicial interference. As stated in Datiles and Co. vs. Sucaldito, supra., which involves a similar statutory prohibition contained in PD 605: The prohibition pertains to the issuance by the c ourts of injunctions or restraining orders, against administrative acts or controversies which involves facts or exercise of discretion in technical cases because to allow courts to judge these matters would disturb the smooth functioning of the administrative machinery.' We are not convinced that the issues raised fall outside of the above dimension so that the courts will not be prevented by PD 1818 from exercising its power to restrain or prohibit administrative acts. The allegation that petitioners' constitutional right is being violated cannot be upheld. Its right to continue with the contract should be considered in light of the DPWH's official prerogative to terminate the same, and until the merits of this issue are fully litigated, the issuance of the preliminary injunction must be deemed covered by PD 1818, if the purpose of the latter issuance is to be served at all.
The petitioner's insistence that its negative sli ppage of 10% as of May, 1992 is below the 15% negative slippage that would authorize take-over of its contract pursuant to PD 1870 and i ts implementing Circular No. 102 goes into the merits of the legality of the termination order, which merely adverted to pe titioner's 'minimal accomplishment.' The idea behind PD 1818 to restrain the courts from interfering with administrative decisions arrived at in the pursuit of infrastructure projects is to enable the agency concerned, which is presumably more knowledgeable with respect to the technical matters involved in such cri tical projects, to utilize its technical expertise in the pursuit of the essential infrastructure projects. Courts should not block by an injunction the discharge of the agency's functions and the implementation of its decisions, i n the absence of a clear violation of constitutional right. We are not convinced that there is such a violation. 7 Indeed, as the majority opinion (concurring with the petitioners) so well point out, one c an take issue on what the respondents would assume to be a limitless application of the aforequoted provision. Section 5, Article VIII, of the 1987 Constitution explicitly vests in the Supreme Court original jurisdiction "... over petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus." The conferment of that jurisdiction may be contended to li kewise implicitly vest in the Court the ancillary remedies incidental to the proper exercise thereof. So, also, Section 1 of the same Article VIII provides that judicial power, this time residing in all courts of competent jurisdiction, includes the duty "... to determine whether or not there has a been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." 8 The Court need not, in my view, pass upon this constitutional question, albeit submitted by the parties, there being neither urgency nor necessity for it at this time. The settled rule is that if there are other grounds upon which a case may be disposed of and resolved, such as, I believe, in this case at bench, courts must refrain from ruling on constitutional issues. 9 What should be apropos, instead of now making a peremptory dictum on the question of the constitutionality or scope of application of the decree, is an inquiry beforehand on the legal propriety, on the basis of Rule 65 of the Rules of Court, of the petition for certiorari and prohibition itself. For the extraordinary writ to issue, the rules require the attendance, among other conditions sine qua non, of "grave abuse of discretion." Has there really been one in the c ase at bench? This is the prejudicial question to be asked. Grave abuse of discretion, albeit an "elastic phrase," 10 has always been understood as a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, such as, to exemplify, "where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, ... so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law." 11 Looking at the several propositions advanced to support the petition, concededly well presented and skillfully argued by counsel, on the one hand, and evaluating the same on the basis of the foregoing standard, on the other hand, I can not see my way clear to holding the appellate court guilty of reversible error in not attributing grave abuse of discretion on the part of the court a quo in refusing to grant the extraordinary writ prayed for. In terminating the contract, said respondents have acted on the basis, preclusive of unessential details, of an official report to the effect that the pace of work on the project, despite "repeated grantings of grace period," has been unsatisfactory and behind schedule. The fear on t heir part of further delays in the completion of the projects has not at all been imaginary. To say that they have acted whimsically or capriciously I find hard to accept. The petitioners allege that under Presidential Decree No. 1 870, signed on 12 July 1983, the authority to take over a delayed infrastructure project may be done only when the negative slippage, which must be actual and not merely anticipated, is more than 15%; hence 1. Whenever a contractor is behind schedule i n its contract work and incur 15% or more negative slippage based on its approved PERT/CPM, the implementing agency, at the discretion of the Minister concerned, may undertake by administration the whole or a portion of the unfinished work, or have the whole or a portion of such unfinished work done by another qualified contractor through negotiated contract at the c urrent valuation price. Petitioners' invocation is poorly placed according to public respondents who, on their part, strongly maintain that the termination of the contract is based on paragraphs 2 and 3 of the same Presidential Decree, providing thusly 2. Whenever a work activity in the project is not being done on schedule per approved PERT/CPM, the Minister concerned/Head of Implementing Agency shall notify and direct the contractor to immediately undertake such work activity. If, within fifteen (15) days from receipt of such notice, the contractor fails to start the work and to show satisfactory performance, the Government may take over the whole or a portion of such w ork and, at the discretion of the Minister concerned, have such work done by administration or award the same to another qualified contractor through negotiated contract at the current valuation price. 3. If, at any time during the progress of the contract work, the contractor should fail, refuse or neglect to supply and provide the required tools, materials, supplies, equipment, facilities and labor-workmen; or if the contract or any part thereof is being sublet or assigned without the previous written consent of the Government; or if the contractor is willfully violating any of the terms, conditions, covements, agreements or technical requirements of the project, the Government shall have the option to take over the project in whole or in part and to complete the same. The Government, at the discretion of the Minister/Head of Implementing Agency concerned, may have the contract work done by administration or award the same to another qualified contractor through negotiated contract at the current valuation price." Additionally, the Solicitor General cites Section 11 of Presidential Decree 1594, which reads: Section 11. Government's Right to Take Over Contract Work. The Government may take over the contract work should the contractor abandon the contract work, or unduly delay the prosecution of the contract work, or become insolvent, or assign his assets for the benefit of his creditors, or be adjudged bankrupt, or assign the contract work without written approval by the Government, or violate any condition or term of the contract. In any of these cases, the Government may terminate the employment of the contractor and take over the contract work after giving due notice to the contractor and his sureties. The above-quoted provisions of Presidential Decree No. 1594 and Presidential Decree No. 1870 must be deemed to form part of, and to co-exist with, the contract, even if the parties did not explicitly provide for them. Applicable peremptory provisions of law of this nature, affecting as they do public policy or impressed as they are with public interest, are held to be written into the contract. 12 In Commissioner of Internal Revenue vs. United States Lines Company, 13 this Court ruled: . . . . Any agreement or contract to be enforceable in this jurisdiction is understood to incorporate therein the provision or provisions of law specifying the obligations of the parties under such contract. The contract between herein respondent Company and its principal consequently imposed upon the parties not only the rights and duties delineated therein, but also the provisions of law such as that of the Code of Commerce aforecited." Looking closely at Presidential Decree No. 1594 and Presidential Decree No. 1870, relied upon by DPWH, it is obvious that the government can terminate or take over a contract work in any of the following cases:
1. Whenever a contractor is behind schedule i n its contract work and incurs a 15% or more negative slippage based on the approved PERT/CPM; 2. Whenever a work activity in the project is not being done on schedule per approved PERT/CPM and the Contractor fails, within fifteen (15) days from receipt of notice, to undertake the work and to show satisfactory performance; 3. If, at any time during the progress of the contract work, the contractor should fail, refuse or neglect to supply and provide the required tools, materials, supplies, equipment, facilities and l abor-workmen; 4. If the contract or any part thereof is being sublet or assigned without the previous written consent of the Government; 5. If the contractor is willfully violating any of the terms, conditions, covements, agreements or technical requirements of the project; 6. If the contractor abandons the contract work, or unduly delays the prosecution of the contract work; or 7. If the contractor becomes insolvent, or assigns his assets for the benefit of creditors, or be adjudged a bankrupt. It cannot be seriously disputed that petitioners' work has been behind schedule, and that said petitioners' attention to such delays has more than once been called. It is rather on the extent and on the cause of such delays, both factual matters, that the parties strongly differ (reiterated by the parties during the hearing held by the Court on 12 January 1994 and again stressed in their respective memoranda). It should be understandable if courts would in the first place, and pending the judicial determination of the facts after due hearing, count on the fi ndings of agencies equipped with the manpower, as well as technical competence, such as the DPWH in this case, to make that evaluation. This Court itself i s not a trier of facts, and it must accord due respect and weight to their conclusions. And even i f I were to assume, for the sake of argument, that there has been on the part of the public respondents, including both the trial court and the appellate court which sustained them, a misappreciation of the facts here involved, I cannot view such flaw, given the circumstances, as amounting to grave abuse of discretion more than, if at all, as mere error of judgment. In sum, I fail to see a clear case that can justify the grant of the petition and the issuance of the extraordinary writs pra yed for. This Court's attention is called by herein petitioners on another matter. It is averred that there has been a recommendation by Undersecretary Romulo del Rosario to award the balance of the project to the third lowest bidder, the Hanil Construction (Hanil), whose bid is 41.4% (P203,960,899.96) over and above the government estimate for the venture; 14 hence, the petitioners' apprehension that the ultimate losers could be the government itself. There i s absolutely no reason for such fear. The DPWH "Resolution Recommending the Prequalification of Fifteen (15), Thirteen (13) and Nine (9) Individual/Joint Venture Contractors and the Predisqualification of Twenty Three (23), Twenty One (21) and Eighteen (18) Individual/Joint Venture Contractors for Contract Packages A, B and C Respectively of the Lower Agusan Development Project, Stage I, Phase I," dated 30 June 1993, signed by "PBAC Chairman" and Undersecretary Romulo M. del Rosario, Bureau of Construction Director Clarita A. Bandonillo, Bureau of Design Director Bienvenido C. Leuterio, Chief of Legal Service Cesar D. Mejia and Project Director, PMO-Flood Control and Drainage Projects Antonio A. Cabrasan, and approved on 14 July 1993 by Secretary Gregorio R. Vigilar, explicitly states that the DPWH's request to negotiate the balance of the work to the next complying bidder has been denied by the Office of the President; instead, a directive was issued to repackage and rebid the project. 15 Accordingly, I vote for the dismissal of the petition, and the denial of the preliminary injunction or temporary restraining order prayed for. February 4, 1941 G.R. No. 47027 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENITO R. PADILLA and ALFRED VON AREND, defendants-appellants. Ross, Lawrence, Selph and Carrascoso for appellant Alfred Von Arend. E.A. Picazo for appellant Benito R. Padilla. Office of the Solicitor General Ozaeta for appellee. LAUREL, J.:
On October 27, 1938, in criminal case No. 57235 of the Court of First Instance of Manila, Benito R. Padilla and Alfred Von Arend were charged with a violation o fCommonwealth Act No. 108, in relation to Commonwealth Act No. 138. The information filed against them by the fiscal of Manila is of the following tenor: That on and during the period between December, 1936 to August, 1938, both dates inclusive, in the City of Manila, Philippine Islands, Benito R. Padilla, a Filipino citizen, and Alfred Von Arend, a German citizen, voluntarily, illegally and criminally, with intent to evade the provisions of Article 4 of Commonwealth Act No. 138, which require Philippine or United States citizenship before the exercise or enjoyment of the privilege established in said article, acting jointly and conniving with each other, executed the following acts, to wit: ( a) the former permitting the latter and for the latter's corporation, known as the "Insular Drug Co.," an entity which is not domestic under the provisions of said Act, because 75% of its capital stock belongs to neither Filipino or American, and of which Alfred Von Arend is the president and general manager, to make use, as in effect made use of his name and of his mercantile domestic firm, known as the "Padilla Central Distributors", in the official auctions for the supply to the Government and its branches of articles, materials and equipment for public use; and ( b) the latter making use, in said official auctions, of the name of the former and that of his commercial firm to the benefit of said corporation, both the accused having gained from the transactions which resulted from such illegal practice, in violation of Article 1 of Commonwealth Act. No. 138. Upon his request, Alfred Von Arend was granted a separate trial, although by agreement of the parties all the evidence presented by the prosecution and the defense in the trial of Alfred Von Arend were offered and admitted in Padilla's. The trial court, on July 25, 1939, rendered judgment finding the two accused guilty of the offense charged, and sentenced each of them to an indeterminate penalty of from two years to four years, to pay a fine of P2,000, with subsidiary imprisonment in case of insolvency, and to pay one-half of the costs. Both have appealed to this Court. Counsel for Von Arend makes the following assignment of errors: I. The trial court erred in ruling that Commonwealth Act. No. 108 had any connection with Commonwealth Act No. 138 or that it punished any deviation from the preferences provided by the law. II. The trial court erred in not finding that Commonwealth Act No. 108 as interpreted by the trial court was enacted in violation of Article VI, sec. 12(1) of the Constitution of the Philippines. III. The trial court erred in holding that Commonwealth Act No. 108 as applied to Alfred Von Arend in this case did not deprive him of his liberty and property without due process of law contrary to Article III , section 1, subsections 15 and 17 of the constitution of the Philippines. IV. The trial court erred and acted contrary to Article III, sec. 1, subsections 15 and 17 of the Constitution of the Philippines in convicting Alfred Von Arend on the basis of evidence not offered at the trial. V. The trial court erred in not properly complying with the provisions of section 33 of the Code of Criminal Procedure. VI. The trial court erred in not holding that Commonwealth Act No. 138 was unconstitutional and void as being contrary to an act of the Congress of the United States.
VII. The trial court erred in not dismissing the information in this case on the ground that more than one crime is charged therein. VIII. The trial court erred in not holding that section 4 of Commonwealth Act No. 138 was enacted contrary to the provisions of section 1, subsection 17, of the Ordinance Appended to the Constitution of the Philippines and is consequently void and ineffective. IX. The trial court erred in finding that Padilla Central Distributors and Benito R. Padilla were mere figure-heads or dummies. X. The trial court erred in disregarding the testimony establishing the Government's practice of awarding contracts to the lo west bidder regardless of whether such bidder was a domestic or a foreign entity. XI. The trial court erred in making findings of facts contrary to the clear weight of evidence. Counsel for Padilla assigns the following errors: I. In not holding that the facts charged in the information do not constitute a public offense and that Act No. 138 is unconstitutional. II. In holding that the "Padilla Central Distributors" was organized by the accused Benito R. Padilla as a mere nominal entity or name in which the "Insular Drug Co., Inc.," made sales to the Government to evade the provisions of Commonwealth Act No. 138. III. In holding that the "Padilla Central Distributors" was managed and administered by the "Insular Drug Co., Inc., IV. In holding that the accused Benito R. Padilla had in bad faith willfully withheld from the Pharmaceutical Board or the person i n charge of issuing permits certain pertinent information when exhibits "12" and "13" were i ssued. V. In finding the accused Benito R. Padilla guilty of the crime charged in the information. The principal question to be determined is whether or not a violation o fCommonwealth Act No. 138, commonly known as the "Flag Law", may be prosecuted under Commonwealth Act No. 108, entitled "An Act to punish acts of evasion of the laws on the nationalization of certain rights, franchises or privileges." Other points raised in the briefs will be taken up in the course of this opinion. It appears that shortly after the approval of Commonwealth Act No. 138, or on December 16, 1936, Benito R. Padilla resigned from the Insular Drug Company, where he had been employed as a selling agent for seven years, and organized the "Padilla Central Distributors" capitalized at P1,000 (Exhibit A) for the distribution and sale of medicine, chemical products, and clinical, surgical and laboratory equipment. At the same time, he opened with his old employer a credit account in the amount of P5,000, secured by his own and his wife's savings deposit, to enable him to purchase drugs and other chemicals and f acilitate his business transactions. In addition, he was allowed a small space in the offices of the Insular Drug Company, and also the use of the latter's telephone, warehouse and delivery cars. To assist hi m in the venture, he appointed Serafin Enriquez, secretary treasurer of the Insular Drug Company, and Bartolome Salapong, cashier of the same firm, as hi s attorney-in-fact and bookkeeper, respectively. Serafin Enriquez, as attorney-in-fact, prepared and submitted all the bids of the Padilla Central Distributor for pharmaceutical supplies needed by the Government, and was successful in winning for it most of the contracts as the lowest domestic bidder. The open-account agreement stipulated the amount of P5,000 as the limit of Padilla's credit, but the finding of the lower court is that this limit had always been exceeded, the lowest instance being in January, 1938, when Benito R. Padilla's account totaled P5,692.88. As most of the government contracts were awarded to the Padilla Central Distributors as the lowest domestic bidder under the provisions o fCommonwealth Act No. 138, and as all the requisitioned supplies were taken from the Insular Drug Company, the sales of the latter increased in volume, and its president and general manager, defendant Alfred Von Arend, for a period comprised between January, 1937 and June, 1938, received dividends amounting to P16,186, besides P1,000 as monthly salary and P200 as monthly expenses. Benito R. Padilla, for the same period, due to the 2-5 per cent discount granted by the Insular Drug Company, made a gross profit of P5,003.31 and a net profit of P2,652.26. (Exhibit 25, Resume of Capitulation Statement.) It is admitted that Commonwealth Act No. 108 does not provide for any penalty for the violation of any of its provisions. Section 1 of Commonwealth Act No. 108, however, provides that "in all cases in which any constitutional or legal provision re quires Philippine or United States citizenship as a requisite for the exercise of enjoyment of a right, franchise or privilege, any citizen of the Philippines or the United States who allows his name or citizenship to be used for the purpose of evading such evading such provision, and any alien or foreigner profiting thereby, shall be punished by imprisonment for not less than two nor more tha n ten years, and a fine of not less than two thousand nor more than ten thousand pesos." In Commonwealth Act No. 138, a domestic entity is defined as "any citizen of the Philippines or of the United States habitually established in business and engaged in the manufacture or sale of the merchandise covered by his bid, or any corporate body or commercial company duly organized and registered under the laws of the Philippines of whose capital 75 per centum is owned by citizens of the Philippines or of the United States, or both." Section 4 of the same Act emphasizes that "whenever several bidders shall participate in the bidding for supplying articles, materials and equipment for any of the dependencies mentioned in section one of this Act for public use, public buildings, or public works, the award shall be made to the domestic entity making the lowest bid, provided that it is not more than fifteen per centum in excess of the lowest bid made by a bidder other than a domestic entity." We are of the opinio n that any citizen of the Philippines or of the United States who knowingly allows his name or citizenship to be used so that a person not so qualified may enjoy the privilege granted to domestic entities by Commonwealth Act No. 138, as well as any alien or foreigner profiting thereby, is guilty of violation of Commonwealth Act No. 108. The Insular Drug Company of which the appellant, Alfred Von Arend, is president and general manager, is a foreign entity because 75 per centum of its capital is not owned by Filipino or American citizens. On the other hand, the Padilla Central Distributors, as organized by the appellant, Benito R. Padilla, which is a domestic entity, enjoys the privilege afforded by Commonwealth Act No. 138. The lower court found that the organization by the Padilla Central Distributors was but an ingenious scheme to evade the requirements of Commonwealth Act No. 138 for the following reasons: (1) Benito R. Padilla did not invest a single centavo in the Padilla Central Distributors for the reason that the Insular Drug Company, through Alfred Von Arend, furnished him all the articles ordered by the Government. Von Arend accounted for his operating capital on paper, and eventually they shared in the profits realized with the award of government contracts to the Padilla Central Distributors. (2) The pledge agreement (Exhibit I) between Benito R. Padilla and the I nsular Drug Company was but a device to dispel the suspicion of business competitors and the authorities. The pledge contract was not notarialized, it was ne ver honored considering the monthly excess of Padilla's account over the quota therein specified. Although Benito R. Padilla and his wife had assigned th eir bank passbooks to Von Arend to answer for their credit, Padilla always indorsed the government warrants to the Insular Drug Company which collected the face value of said warrants. (3) Benito R. Padilla opened his office in the Insular Drug Company, and was allowed to use the latter's telephone, warehouse and delivery truck. This disproves the pretended independence of the Padilla Central Distributors from the Insular Drug Company. (4) Padilla's employees, Serafin Enriquez and Bartolome Salapong, are salaried men of the Insular Drug Company, and Padilla's claim that they were paid by him was not accepted by the lower court. (5) Benito R. Padilla had no tangible investment in the Padilla Central Distributors, and it was Serafin Enriquez, his attorn ey-in-fact, and the secretary-treasurer of the Insular Drug Company, who supervised all the business transactions, from the formal submission of the bids to the endorsement of the government warrants to the Insular Drug Company. These are conclusions of facts which we are not inclined to disturb. The lower court also found that the appellant, Alfred Von Arend, had profited by the sc heme, for the reason that under section 4 of the Flag Law, the Insular Drug Company being a foreign entity would have had to bid 1 5 per cent lower to successfully outbid
a domestic entity or a domestic bidder. With the establishment of the Padilla Central Di stributors which submitted bids as a domestic entity, the Insular Drug Company stood to lose only 2 -5 per cent as a discount to Padilla. The advantage afforded by this arrangement is proved by the fact that, as hereinabove stated, between the period comprised between September, 1937, and June, 1938 alone, Alfred Von Arend, as president, general manager, and controlling stockholder of the Insular Drug Company, received as dividends the sum of P16,186, in addition to his monthly salary and expenses of P1,000 and P200, respectively; and Benito R. Padilla, for the same period, realized a gross profit of P5,003.31. It is contended, however, that notwithstanding the infringement of section 4 of Act No. 138, the defendants cannot be punished therefor since the said Act No. 138 imposes no appeal sanction whatsoever, and the penalty provided by Act No. 108 cannot be correctly extended to and applied in this case. This argument is, in our opinion, without merit. The very title of Act No. 108 gives unmistakable notice of the legislative intent of the laws of the nationalization of certain rights, franchises or privileges," and section 1 of the same Act applies the punishment provided therein to "all cases in which any constitutional or legal provision requires Philippine or United States citizenship as a requisite for the exercise of enjoyment of a right, franchise or privilege." Under Act No. 108 any legal provision, whether existing at the time of the passage of said Act No. 108 or promulgated thereafter, would fall within its scope, so long as said legal provision requires Philippine or United States citizenship as a requisite for the enjoyment of a right, franchise or privilege. One of such legal provisions is section 4 of Commonwealth Act No. 138. While "statutes prescribing punishments or penalties should not be extended further than their terms reasonably justify" (Snowden v. Brown, 60 Fla. 212, 53 So. 548, 549), this rule of strict construction is subordinate to the rule of reasonable, sensible construction having in view the legislative purpose and intent, and giving effect to the same. It is not to be so unreasonably applied as to defeat the true intent and meaning of the of the enactment found in the language actually used. (Chapman v. Lake, 151 So. 399, 402-403.) Although not so expressly stated, Act No. 138 is cumulative of Act No. 108; and it is no objection that one statute creates an offense and another Act provides for i ts punishment. It is also urged that Acts Nos. 108 and 138 are unconstitutional: as to the former, because its provisions are vague and unce rtain, covered more than one subject, and deprived Alfred Von Arend of his liberty and property without due process of law; and as to the latter, because it is contrary to Act No. 428 of the 72nd Congress of the United States. We have examined these Commonwealth Acts and are of the opinion that they are constitutional. Commonwealth Act No. 108 is sufficiently clear, and prescribes with reasonable certainty the elements of the offense that it punishes. It embraces only one general subject, to w it, the punishment of acts of evasion of the laws on the nationalization of certain rights, franchises or privileges, which subject is fairly suggestive of, and not foreign to, its intent and purpose. It does not deprive Alfred Von Arend, or any person for that matter, of liberty and property without due process of law. As to Commonwealth Act No. 138, this cannot be said to be antagonistic to Act No. 428 of the 72nd Congress of the United States. Fundamentally, it is in harmony with the congressional enactment. The judgment of the lower court as to Alfred Von Arend is affirmed in all respects. As to Benito R. Padilla, the Court feels that as a Filipino citizen he has proved himself lacking in civic consciousness and responsibility as to require censure and punishment at once prompt and severe, in order to enliven the confidence of the people in their Government and their institutions. The pena lty, in his case, is accordingly increased to a minimum imprisonment of four (4) years to a maximum imprisonment of six (6) years and a fine of P4,000, with subsidiary imprisonment in case of insolvency, both appellants to pay the costs. So ordered. Avanceña, C.J., Imperial, Diaz, and Horrilleno, JJ., concur.
G.R. No. L-14129 August 30, 1962 PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. GUILLERMO MANANTAN, defendant-appellee. Office of the Solicitor General for plaintiff-appellant. Padilla Law Office for defendant-appellee.
RESOLUTION REGALA, J.: This resolution refers to a motion for reconsideration filed by the counsel for defendant-appellee, Guillermo Manantan. Defendant-appellee does not dispute the correctness of this Court's ruling in the main case. He concedes that a justice of the peace is covered by the prohibition of Section 54, Revised Election Code. However, he takes exce ption to the dispositive portion of this Court's ruling promulgated on July 31, 1962, which reads: For the above reasons, the order of dismissal entered by the trial court should be set aside and this case is remanded for trial on the merits. It is now urged by the defendant-appellee that the ultimate effect of remanding the case to the lower court for trial on the merits is to place him twice in jeopardy of being tried for the same offense. He calls the attention of this Court to the fact that when the charge against him was dismissed by the lower court, jeopardy had already attached to his person. To support his claim, he cites the case of People vs. Labatete, G.R. No. L-12917, April 27, 1960. Defendant-appellee's plea of double jeopardy should be rejected. The accused cannot now invoke the defense of double jeopardy. When the government appealed to this Court the order of dismissal, defendant Manantan could have raised that issue by way of resisting the appeal of the state. Then again, when defendant-appellee filed his brief, he could have argued therein his present plea of double jeopardy. Yet, on neither occasion did he do so. He must, therefore, be deemed to have waived his constitutional right thereunder. This is in accord with this Court's ruling in the cases of People vs. Rosalina Casiano, G.R. No. L-15309, February 16, 1961 and People vs. Pinuila, G.R. No. L-11374, May 30, 1958, hereunder quoted: . . . defendant herein has filed a brief in which she limited herself to a discussion of the merits of the appeal. Thus, she not only failed to question, in her brief, either expressly or impliedly, the right of the prosecution to interpose the present appeal, but also, conceded in effect the existence of such right. She should be deemed, therefore, to have waived her aforementioned constitutional immunity.1äwphï1.ñët It is true that in People vs. Hernandez (49 O.G. 5342), People vs. Ferrer, L-9072 (October 23, 1956),People vs. Bao, L-12102 (September 29, 1959) and People vs. Golez, L-14160, we dismissed the appeal taken by the Government from a decision or order of a lower court, despite defendant's failure to object thereto. However, the defendants in those cases, unlike the defendant herein, did not file any brief. Hence, they had performed no affirmative act from which a waiver could be implied. (People vs. Casiano, supra). In his appeal brief, appellant's counsel does not raise this question of double jeopardy, confining himself as he does, to the discussion of the evidence in the record, contending that the guilt of the appellant has not been proven beyond reasonable doubt. One aspect of this case as regards double jeopardy is that defense may be waived, and, that f ailure to urge it in the appeal may be regarded as a waiver of said defense of double jeopardy.(People vs. Pinuila, supra). There are other grounds raised by the defendant-appellee in this motion for reconsideration. The Court, however, does not believe that they were well taken. FOR THE ABOVE REASONS, the motion for reconsideration filed in this case, is, as it is hereby, denied.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon and Makalintal, JJ., concur. G.R. No. L-42050-66 November 20, 1978 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE JUDGE AMANTE P. PURISIMA, COURT OF FIRST INSTANCE OF MANILA, BRANCH VII, and PORFIRIO CANDELOSAS, NESTOR BAES, ELIAS L. GARCIA, SIMEON BUNDALIAN, JR., JOSEPH C. MAISO, EDUARDO A. LIBORDO, ROMEO L. SUGAY, FEDERICO T. DIZON, GEORGE M. ALBINO, MARIANO COTIA, JR., ARMANDO L. DIZON, ROGELIO B. PARENO, RODRIGO V. ESTRADA, ALFREDO A. REYES, JOSE A. BACARRA, REYNALDO BOGTONG, and EDGARDO M. MENDOZA, respondents. G.R. No. L-46229-32 November 20, 1978 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA, BRANCH XVIII, and REYNALDO LAQUI Y AQUINO, ELPIDIO ARPON, VICTOR EUGENIO Y ROQUE and ALFREDO VERSOZA,respondents. G.R. No. L-46313-16 November 20, 1978 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA, BRANCH XVIII, and JUANITO DE LA CRUZ Y NUNEZ, S ABINO 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-463 13-16. Norberto L. Apostol for respondent Panchito Refuncion. Hon. Amante P. Purisima for and in his own behalf.
MUÑOZ PALMA, J.: These twenty-six (26) Petitions for Review filed by the People of the Philippines represented, respectively, by the Office of the City Fiscal of Manila, the Office of the Provincial Fiscal of Samar, and joined by the Solicitor General, are consolidated in this one Decision as they involve one basic question of law. These Petitions or appeals involve three Courts of First Instance, namely: the Court of First Instance of Manila, Branch VII, presided by Hon. Amante P. Purisima (17 Petitions), the Court of Firs t 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 accuse d 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 "ill egal possession of deadly weapon" penalized under Presidential Decree (PD for short) No. 9? This is the central issue which we shall resolve and dispose of, all other corollary matters not being indispensable for the moment. A — The Information filed by the People — 1. In L-42050-66, one typical Information filed with the Court presided by Judge Purisima follows: THE PEOPLE OF THE PHILIPPINES, plaintiff, versus PORFIRIO CANDELOSAS Y DURAN, accused. Crim. Case No. 19639 VIOLATION OF PAR. 3, PRES. DECREE No. 9 OF PROCLAMATION 1081 INFORMATION The undersigned accuses PORFIRIO CANDELOSAS Y DURAN of a violation of paragraph 3, Presidential Decree No. 9 of Proclamation 1081, committed as follows: That on or about the 14 th day of December, 1974, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully, feloniously and knowingly have in his possession and under his custody and control one (1) carving knife with a blade of 6-½ inches and a wooden handle of 5-1/4 inches, or an overall length of 11-¾ inches, which the said accused carried outside of his residence, the said weapon not being used as a tool or implement necessary to earn his livelihood nor being used in connection therewith. Contrary to law. (p. 32, rollo of L-42050-66) The other Informations are similarly worded except for the name of the accused, the date and place of the commission of the crime, and the kind of weapon involved. 2. In L-46229-32 and L-46313-16, the Information filed with the Court presided by Judge Maceren follows: THE PEOPLE OF THE PHILIPPINES, plaintiff, versus REYNALDO LAQUI Y AQUINO, accused. CRIM. CASE NO. 29677 VIOL. OF PAR. 3, PD 9 IN REL. TO LOI No. 266 of the Chief 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, 1 975, committed as follows: That on or about the 28 th day of January, 1977, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and knowingly carry outside of his residence a bladed and pointed weapon, to wit: an ice pick with an overall length of about 8½ inches, the same not being used as a necessary tool or implement to earn his livelihood nor being used in connection therewith. Contrary to law. (p. 14, rollo of L-46229-32)
The other Informations are likewise similarly worded except for the name of the accused, the date and place of the commission of the crime, and the kind of weapon involved. 3. In L-46997, the Information before the Court of First Instance of Samar is quoted hereunder: PEOPLE OF THE PHILIPPINES, complainant, versus PANCHITO REFUNCION, accused. CRIM. CASE NO. 933 For: ILLEGAL POSSESSION OF DEADLY WEAPON (VIOLATION OF PD NO. 9) INFORMATION The undersigned First Assistant Provincial Fiscal of Samar, accuses PANCHITO REFUNCION of the crime of ILLEGAL POSSESSION OF DEADLY WEAPON or VIOLATION OF PD NO. 9 issued by the President of the Philippines on Oct. 2, 1972, pursuant to Proclamation No. 1081 dated Sept. 21 and 23, 1972, committed as follows: That on or about the 6th day of October, 1976, in the evening at Barangay Barruz, Municipality of Matuginao, Province of Samar Philippines, and within the jurisdiction of this Honorabe Court, the abovenamed accused, knowingly, wilfully, unlawfully and feloniously carried with him outside of his residence a deadly weapon called socyatan, an instrument which from its very nature is no such as could be used as a necessary tool or instrument to earn a livelihood, which act committed by the accused is a Violation of Presidential Decree No. 9. CONTRARY TO LAW. (p. 8, rollo of L-46997) B. — The Orders of dismissal — In dismissing or quashing the Informations the trial courts concurred with the submittal of the defense that one essential el ement 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 f urtherance 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 de fect. xxx xxx xxx And while there is no proof of it before the Court, it is not difficult to believe the murmurings of detained persons brought to Court upon a charge of possession of bladed weapons under P.D. No. 9, that more than ever before, policemen - of course not all can be so heartless — now have in their hands P.D. No. 9 as a most convenient tool for extortion, what with the terrifying risk of being sentenced to imprisonment of five to ten years for a rusted kitchen knife or a pair of scissors, which only God knows where it came from. Whereas before martial law an extortion-minded peace officer had to have a stock of the cheapest paltik, and even that could only convey the coercive message of one year in jail, now anything that has the semblance of a sharp edge or pointed object, available even in trash cans, may already serve the same purpose, and yet five to ten times more incriminating than the infamous paltik. For sure, P.D. No. 9 was conceived with the best of intentions and wisely applied, its necessity can never be assailed. But it seems it is back-firing, because it is too hot in the hands of policemen who are inclined to backsliding. The checkvalves against abuse of P.D. No. 9 are to be found in the heart of the Fiscal and the conscience of the Court, and hence this resolution, let alone technical legal basis, is prompted by the desire of this Court to apply said checkvalves. (pp. 55-57, rollo of L-42050-66) 2. Judge Maceren in turn gave his grounds for dismissing the charges as follows: xxx xxx xxx As earlier noted the "desired result" sought to be attained by Proclamation No. 1081 is the maintenance of law and order throughout the Philippines and the prevention and suppression of all forms of lawless violence as well as any act of insurrection or rebellion. It is therefore reasonable to conclude from the foregoing premises that the carrying of bladed, pointed or blunt weapons outside of one's residence which is made unlawful and punishable by said par. 3 of P.D. No. 9 is one thatabets subversion, insurrection or rebellion, lawless vi olence, 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 i s 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 i s now made unlawful and punishable, particularly by paragraph 3 thereof, regardless of the intention of the person carrying such weapon because the law makes it "mala prohibita". If the contention of the prosecution is correct, then if a person happens to be caught while on his way home by law enforcement officers carrying a kitchen knife that said person had just bought from a store in order that the same may be used by one's cook for preparing the meals in one's home, such person will be liable for punishment with such a severe penalty as imprisonment from five to ten years under the decree. Such person cannot claim that said knife is going to be used by him to earn a livelihood because he intended it merely for use by his cook in preparing his meals. This possibility cannot be discounted if Presidential Decree No. 9 were to be interpreted and applied in the manner that that the prosecution wants it to be done. The good intentions of the President in promulgating this decree may thus be perverted by some unscrupulous law enforcement officers. It may be used as a tool of oppression and tyranny or of extortion. xxx xxx xxx It is therefore the considered and humble view of this Court that the act which the President intended to make unlawful and punishable by Presidential Decree No. 9, particularly by paragraph 3 thereof, is one that abets or is
intended to abet subversion, rebellion, insurrection, lawless violence, criminality, chaos and public disorder. (pp. 28-30, rollo of L-46229-32) 3. Judge Polo of the Court of First Instance of Samar expounded his order dismissing the Information filed before him, thus: ... We believe that to constitute an offense under the aforcited Presidential decree, the same should be or there should be an allegation that a felony was committed in connection or in furtherance of subversion, rebellion, insurrection, lawless violence and public disorder. Precisely Proclamation No. 1081 declaring a state of martial law throughout the country was issued because of wanton destruction to lives and properties widespread lawlessness and anarchy. And in order to restore the tranquility and stability of the country and to secure the people from violence anti loss of lives in the quickest possible manner and time, carrying firearms, explosives and deadly weapons without a permit unless the same would fall under the exception is prohibited. This conclusion becomes more compelling when we consider the penalty imposable, which is from five years to ten years. A strict enforcement of the provision of the said law would mean the imposition of the Draconian penalty upon the accused. xxx xxx xxx It is public knowledge that in rural areas, even before and during martial la w, 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. 1819, rollo of L-46997) In most if not all of the cases, the orders of dismissal were given before arraignment of the accused. In the criminal case before the Court of (First Instance of Samar the accused was arraigned but at the same time moved to quash the Information. In all the cases where the accused were under arrest, the three Judges ordered their immediate release unless held on other charges. C. — The law under which the Informations in question were filed by the People. As seen from the Informations quoted above, the accused are charged with illegal possession of deadly weapon in violation of Presidential Decree No. 9, Paragraph 3. We quote in full Presidential Decree No. 9, to wit: PRESIDENTIAL DECREE NO. 9 DECLARING VIOLATIONS OF GENERAL ORDERS NO. 6 and NO. 7 DATED SEPTEMBER 22, 1972, AND SEPTEMBER 23, 1972, RESPECTIVELY, TO BE UNLAWFUL AND PROVIDING PENALTIES THEREFORE. WHEREAS, pursuant to Proclamation No. 1081 dated September 21, 1972, the Philippines has been placed under a state of martial law; WHEREAS, by virtue of said Proclamation No. 1081, General Order No. 6 dated September 22, 1972 and General Order No. 7 dated September 23, 1972, have been promulgated by me; WHEREAS, subversion, rebellion, insurrection, lawless violence, criminality, chaos and public disorder mentioned in the aforesaid Proclamation No. 1081 are committed and abetted by the use of firearms, explosives and other deadly weapons; NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the Armed Forces of the Philippines, in older to attain the desired result of the aforesaid Proclamation No. 1081 and General Orders Nos. 6 and 7, do hereby order and decree that: 1. Any violation of the aforesaid General Orders Nos. 6 and 7 is unlawful and the violator shall, upon conviction suffer: (a) The mandatory penalty of death by a firing squad or electrocution as a Military, Court/Tribunal/Commission may direct, it the firearm involved in the violation is unlicensed and is attended by assault upon, or resistance to persons in authority or their agents in the performance of their official functions resulting in death to said persons in authority or their agent; or if such unlicensed firearm is used in the commission of crimes against persons, property or chastity causing the death of the victim used in violation of any other General Orders and/or Letters of Instructions promulgated under said Proclamation No. 1081: (b) The penalty of imprisonment ranging from twenty years to life imprisonment as a Military Court/Tribunal/commission may direct, when the violation is not attended by any of the circumstances enumerated under the preceding paragraph; (c) The penalty provided for in the preceding paragraphs shall be imposed upon the owner, president, manager, members of the board of directors or other responsible officers of any public or private firms, companies, corporations or entities who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity concerned to be used in violation of said General Orders Nos. 6 and 7. 2. It is unlawful to posses deadly weapons, including hand grenades, rifle grenades and other explosives, including, but not limited to, "pill box bombs," "molotov cocktail bombs," "fire bombs," or other incendiary device consisting of any chemical, chemical compound, or detonating agents containing combustible units or other ingredients in such proportion, quantity, packing, or bottling that ignites by fire, by friction, by concussion, by percussion, or by detonation of all or part of the compound or mixture which may cause such a sudden generation of highly heated gases that the resultant gaseous pressures are capable of producing destructive effects on continguous objects or of causing injury or death of a person; and any person convicted thereof shall be punished by imprisonment ranging from ten to fifteen years as a Military Court/Tribunal/Commission may direct. 3. It is unlawful to carry outside of residence any bladed, pointed or blunt weapon such as "fan knife," "spear," "dagger," "bolo," "balisong," "barong," "kris," or club, except where such articles are being used as necessary tools or implements to earn a livelihood and while being used in connection therewith; and any person found guilty thereof shall suffer the penalty of imprisonment ranging from five to ten years as a Military Court/Tribunal/Commission may direct. 4. When the violation penalized in the preceding paragraphs 2 and 3 is committed during the commission of or for the purpose of committing, any other cri me, 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 n ow under consideration is that a perusal of paragraph 3 of P.D. 9 'shows that the prohibited acts need not be related to subversive activities; that the act proscribed is essentially a malum prohibitum penalized for reasons of public policy. 1
The City Fiscal of Manila in his brief adds further that in statutory offenses the intention of the accused who commits the act is immaterial; that it is enough if the prohibited act is voluntarily perpetuated; that P.D. 9 provides and condemns not only the carrying of said weapon in connection with the commission of the crime of subversion or the like, but also that of criminality in general, that is, to eradicate lawless violence which characterized pre-martial law days. It is also argued that the real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated but by the actual recital of facts in the complaint or information. 2 E. — Our Ruling on the matter — 1. It is a constitutional right of any person who stands charged in a criminal prosecution to be informed of the nature and cause of the accusation against him. 3 Pursuant to the above, Section 5, Rule 110 of the Rules of Court, expressly requires that for a complaint or information to be sufficient it must, inter alia state the designation of the offense by the statute, and the acts or omissions complained of as constituting the offense. This is essential to avoid surprise on the accused and to afford hi m the opportunity to prepare his defense accordingly. 4 To comply with these fundamental requirements of the Constitution and the Rules on Cri minal Procedure, it is imperative for the specific statute violated to be designated or mentioned 4 i n the charge. In fact, another compelling reason exists why a specification of the statute violated is essential in these cases. As stated in the order of respondent Judge Maceren the carrying of so-called "deadly weapons" is the subject of another penal statute and a Manila city ordinance. Thus, Section 26 of Act No. 1780 provides: Section 26. It should be unlawful for any person to carry concealed about his person any bowie knife, dirk dagger, kris, or other deadly weapon: ... Any person violating the provisions of this section shall, upon conviction in a court of competent jurisdiction, be punished by a fine not exceeding fiv e 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 cri me and the penalty imposed for the offense. We do not agree with petitioner that the above-mentioned statute and the city ordinance are deemed repealed by P.D. 9 (3). 5 P. D. 9(3) does not contain any repealing clause or provision, and repeal by implication is not favored. 6This principle holds true with greater force with regards to penal statutes which as a rule are to be construed strictly against the state and lib erally 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 ri ght 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 i n the body of the Information with a violation of paragraph 3, P.D. 9. What then are the elements of the offense treated in the presidential decree in question? We hold that the offense carries two elements: first, the carrying outside one's residence of any bladed, blunt, or pointed weapon, etc. not used as a necessary tool or implement for a livelihood; and second, that the act of carrying the weapon was either in furtherance of, or to abet, or in connection with subversion, rebellion, insurrection, lawless violence, criminality, c haos, 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 i n favor of the accused and strictly against the state. 4. In the construction or interpretation of a le gislative 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 f act that subversion, rebellion, insurrection, lawless violence, criminality, chaos, aid public disorder mentioned in Proclamation 1081 are committed and abetted by the use of firearms and explosives and other deadly weapons. The Solicitor General however contends that a preamble of a statute usually introduced by the word "whereas",is not an essential part of an act and cannot enlarge or confer powers, or cure inherent defects in the statute (p. 120, rollo of L -42050-66); that the explanatory note or enacting clause of the decree, if it indeed limits the violation of the decree, cannot prevail over the text itself inasmuch as such explanatory note merely states or explains the reason which prompted the issuance of the decree. (pp. 114-115, rollo of 46997) We disagree with these contentions. Because of the problem of determining what acts fall within the purview of P.D. 9, it becomes necessary to inquire into the intent and spirit of the decree and this can be found among others in the preamble or, whereas" clauses which enumerate the facts or events which justify the promulgation of the decree and the stiff sanctions stated therein.
A "preamble" is the key of the statute, to open the minds of the makers as to the mischiefs which are to be remedied, and objects which are to be accomplished, by the provisions of the statute." (West Norman Timber v. State, 224 P. 2d 635, 639, cited in Words and Phrases, "Preamble"; emphasis supplied) While the preamble of a statute is not strictly a part thereof, it may, when the statute is in itself ambiguous and difficult of interpretation, be resorted to, but not to create a doubt or uncertainty which otherwise does not exist." (James v. Du Bois, 16 N.J.L. (1 Har.) 285, 294, cited in Words and Phrases, "Preamble") In Aboitiz Shipping Corporation, et al. v. The City of Cebu, et al. this Court had occasion to state that '(L)egislative intent must be ascertained from a consideration of the statute as a whole, and not of an isolated part or a particular provi sion 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 r ead together with other provisions. 9 Second, the result or effects of the presidential decree must be within its reason or intent. In the paragraph immediately following the last "Whereas" clause, the presidential decree states: NOW, THEREFORE, I , FERDINAND E. MARCOS, Commander-in-Chief of an the Armed Forces of the Philippines, in order to attain the desired result of the aforesaid Proclamation No. 1081 and General Orders Nos. 6 and 7, do hereby order and decree that: xxx xxx xxx From the above it is clear that the acts penalized in P.D. 9 are those related to the desired result of Proclamation 1081 and General Orders Nos. 6 and 7. General Orders Nos. 6 and 7 refer to firearms and therefore have no relevance to P.D. 9(3) which refers to blunt or bladed weapons. With respect to Proclamation 1081 some of the underlying reasons for its issuance are quoted hereunder: WHEREAS, these lawless elements having taken up arms against our duly constituted government and against our people, and having committed and are still c ommitting acts of armed insurrection and rebellion consisting of armed raids, forays, sorties, ambushes, wanton acts of murders, spoilage, plunder, looting, arsons, destruction of public and private buildings, and attacks against innocent and defenseless civilian lives and property, all of which activities have seriously endangered and continue to endanger public order and safety and the security of the nation, ... xxx xxx xxx WHEREAS, it is evident that there is throughout the land a state of anarchy and lawlessness, chaos and disorder, turmoil and destruction of a magnitude equivalent to an actual war between the forces of our duly constituted government and the New People's Army and their satellite organizations because of the unmitigated forays, raids, ambuscades, assaults, violence, murders, assassinations, acts of terror, deceits, c oercions, 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 af orequoted desired result of Proclamation 1081 that is within the i ntent 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 i ts 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. 604605, cited in Commissioner of Internal Revenue v. Filipinas Compania de Seguros, 107 Phil. 1055, 1060; emphasis supplied) 5. In the construction of P.D. 9(3) it becomes relevant to inquire into the consequences of the measure if a strict adherence to the letter of the paragraph is followed. It is a salutary principle in statutory construction that there exists a valid presumption that undesirable consequences were never intended by a legislative measure, and that a construction of which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful, evil, and injurious consequences. 9-a It is to be presumed that when P.D. 9 was promulgated by the President of the Republic there was no intent to work a hardship or an oppressive result, a possible abuse of authority or act o f oppression, arming one person with a weapon to i mpose hardship on another, and so on. 10 At this instance We quote from the order of Judge Purisima the following: And while there is no proof of it before the Court, it is not difficult to believe the murmurings of detained persons brought to Court upon a charge of possession of bladed weapons under P.D. No. 9, that more than ever before, policemen - of course not all can be so heartless — now have in their hands P.D. No. 9 as a most convenient tool for extortion, what with the terrifying risk of being sentenced to imprisonment of five to ten years for a rusted kitchen knife or a pair of scissors, which only God knows where it came from. Whereas before martial law an extortion-minded peace officer had to have a stock of the cheapest paltik, and even that could only convey the coercive message of one year in jail, now anything that has the semblance of a sharp edge or pointed object, available even in trash cans, may already serve the same purpose, and yet five to ten times more incriminating than the infamous paltik. (pp. 72-73, rollo L-42050-66) And as respondent Judge Maceren points out, the people's interpretation of P.D. 9(3) results in absurdity at times. To his ex ample 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 i s not made clearly so by the statute. (U.S. v. Abad Santos, 36 Phil. 243, 246) The rule that penal statutes are given a strict construction is not the only factor controlling the interpretation of such laws, instead, the rule merely serves as an additional, single factor to be considered as an aid in determining the meaning of penal laws. (People v. Manantan, 5 SCRA 684, 692) F. The Informations filed by petitioner are fatally defective. The two elements of the offense covered by P.D. 9(3) must be alleged in the Information in order that the latter may constitute a sufficiently valid charged. The sufficiency of an Information is determined solely by the facts alleged therein. 13 Where the facts are incomplete and do not convey the elements of the crime, the quashing of the accusation is in order. Section 2(a), Rule 117 of the Rules of Court provides that the defendant may move to quash the complaint or information when the facts charged do not constitute an offense. In U.S.U. Gacutan, 1914, it was held that where an accused is charged with knowingly rendering an unjust judgment under Article 204 of the Revised Penal Code, failure to allege in the Information that the judgment was rendered knowing it to be unjust, is fatal. 14 In People v. Yadao, 1954, this Court through then Justice Cesar Bengzon who later became Chief Justice of the Court affirmed an order of the trial court which quashed an Information wherein the facts recited did not constitute a public offense as defined in Section 1, Republic Act 145. 15 G. The filing of these Petitions was unnecessary because the People could have availed itself of other available remedies below. Pertinent provisions of the Rules of Court follow: Rule 117, Section 7. Effect of sustaining the motion to quash. — If the motion to quash is sustained the court may order that another information be filed. If such order is made the defendant, if in custody, shall remain so unless he shall be admitted to bail. If such order is not made or if having been made another information is not filed withuntime to be specified in the order, or within such further time as the court may allow for good cause shown, the defendant, if in custody, shall be discharged therefrom, unless he i s 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 file d 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 gi ven an opportunity to amend the Information. 16 Second, if the facts so justified, the People could have filed a complaint either under Section 26 of Act No. 1780, quoted earlier, or Manila City Ordinance No. 3820, as amended by Ordinance No. 3928, especially since in most if not all of the cases, the dismissal was made prior to arraignment of the accused and on a motion to quash. Section 8. Rule 117 states that: An order sustaining the motion to quash is not a bar to another prosecution for the same offe nse 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 cri minal action or liability had been extinguished (Section 2[f]) or when the motion to quash was granted for reasons of double jeopardy. (ibid., [h]) As to whether or not a plea of double jeopardy may be successfully invoked by the accused i n 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 ca se 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 1 5, 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 i t 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 ci tizenry to lose their faith in their government. WHEREFORE, We DENY these 26 Petitions for Review and We AFFIRM the Orders of respondent Judges dismissing or quashing the Information concerned, subject however to Our observations made in the preceding pages 23 to 25 of this Decision regarding the right of the State or Petitioner herein to file either an amended Information under Presidential Decree No. 9, paragraph 3, or a new one under other existing statute or city ordinance as the facts may warrant. Without costs. SO ORDERED. Fernando, Teehankee, Santos, Fernandez and Guerrero, JJ., concur. Castro, C.J. and Antonio, J, concur in the result. Aquino, J, took no part. Separate Opinions BARREDO, J., concurring. I concur with the qualification that under existing jurisprudence conviction is possible, without the need of amending the information, for violation of other laws or ordinances on concealment of deadly weapons. Makasiar, J, concurs. CONCEPCION, JR., J, concurring:
I concur with the additional observation that accused could properly be convicted of a violation of Act 1780 of the Philippine Commission or of the ordinance. Separate Opinions BARREDO, J., concurring. I concur with the qualification that under existing jurisprudence conviction is possible, without the need of amending the information, for violation of other laws or ordinances on concealment of deadly weapons. Makasiar, J, concurs. CONCEPCION, JR., J, concurring: I concur with the additional observation that accused could properly be convicted of a violation of Act 1780 of the Philippine Commission or of the ordinance. G.R. No. L-23625 November 25, 1983 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. MARIANO TERRADO, PEDRO TERRADO and CASIMIRO FLORES, defendants-appellees. G.R. No.L-23626 November 25, 1983 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. REMEDIOS GUNDRAN, PEDRO TERRADO, CASIMIRO FLORES, and BRUNO GUNDRAN, defendants-appellees. G.R. No. L-23627 November 25, 1983 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellants, vs. GERTRUDES OBO, PEDRO TERRADO, CASIMIRO FLORES, and BRUNO GUNDRAN. defendants-appellees. The Solicitor General for plaintiff-appellee. German G. Vilgera for defendants-appellees.
CONCEPCION, JR., J.: ñé+.£ªwph!1 APPEAL from the orders of the Court of First Instance of Camarines Sur, all dated April 15, 1963, which dismissed Criminal Case No. 7613 of said court, entitled: "The People of the Philippines, plaintiff, versusMariano Terrado, et al., defendants"; Criminal Case No. 7614, entitled: the People of the Philippines, plaintiff, versus Remedios Gundran, et al., defendants"; and Criminal Case No. 7615, entitled: "The People of the Philippines, plaintiff, versus Gertrudes Obo, e t al., defendants", on the ground that "the crimes committed by the accused are either perjury defined under Sec tion 129 of the Commonwealth Act No. 141 and punished under Art. 183 of the Revised Penal Code, or offenses relating to 'unlawful occupation and destruction of public forest' defined and punished under Section 2751 of the Revised Administrative code, as amended by Acts 115 and 171" and had already prescribed. The appellant maintains that the facts charged in the informations constitute the crimes of falsification of public documents, defined and penalized under Art. 171, par. 4, of the Revised Penal Code, and that the criminal actions have not Yet prescribed. The records of the cases show that in November, 1951 and May, 1952, Gertrudes Obo, Remedi os Gundran, and Mariano Terrado applied for, and were issued free patents for contiguous parcels of land situated in Barrio Paculago Ragay, Camarines Sur, each containing an area of more than 23 hectares, and more particularly known as Lots 7, 8 and 9 of Plan Psu-1 25902, respectively. As the said parcels of land were allegedly forest land and, hence, not disposable, Mariano Terrado, Remedios Gundran, and Gertrudes Obo were charged before the Court of First Instance of Camarines Sur on March 13, 1962, in three separate informations for falsification of public documents, defined and penalized under Art. 171 of the Revised Penal Code, docketed therein as Criminal Case Nos. 7613, 7614, and 7615, respectively, together with Pedro Terrado, a licensed private l and surveyor; Casimiro Flores, a public land inspector of the Bureau of Lands; and Bruno Gundran, the District Land Officer of District No. 10 of the Bureau of Lands, for having conspired, confederated, cooperated together, and helped one another, through false and fraudulent misrepresentations in wilfully, unlawfully, and feloniously with full knowledge of their falsity, preparing or causing to be prepared, documents containing false narration of facts, more particularly, the (1) applications for free patent; (2) notices of application for free patent; (3) final inspection reports; and (4) first indorsements of District Land Officer Bruno Gundran, wherein they made it appear to the Director of Lands and the Secretary of Agriculture and Natural Resources that the applicants possessed all the necessary qualifications and had complied with all the requirements of law to entitle them to a free patent, when in truth and in fact, as they all fully well knew, all their manifestations were false and fraudulent and that the said applicants had not complied with any or all of the requirements of the law to entitle them to a free patent. The informations further alleged that Casimiro Flores and Bruno Gundran had taken advantage of their respective official positions in making the untruthful statements. Before the arraignment, the defendants filed separate motions to quash the informations on the ground that the crimes charged in the informations do not constitute the offense of falsification of public documents, and that the same had already prescribed. After proper hearing, the trial court dismissed the i nformations as aforesaid. Hence, the present recourse. While the informations sufficiently alleged the commission of falsification of public documents under Art. 171 of the Revised Penal Code, the offenses alleged to have been committed have already prescribed since the preparation and submission of false affidavits in support of a petition or claim respecting lands of the public domain is also punishable as perjury under Sec. 129 of Commonwealth Act No. 141, as amended, which reads, as follows: têñ.£îhqw⣠Sec. 129. Any person who present or causes to be presented, or cooperates in the presentation of, any false application, declaration, or evidence, or makes or causes to be made or cooperates in the making of a false affidavit in support of any petition, claim, or objection respecting lands of the public domain, shall be deemed guilty of perjury and punished as such. Falsification of public documents is punishable by prision mayor and a fi ne not to exceed P 5,000.00. 1 Prison mayor is an afflictive penalty, 2 and hence, prescribes in 15 years. 3 Perjury, upon the other hand, is punishable byarresto mayor in its maximum period to prision correccional in its minimum period, 4 or from four (4) months and one (1) day to two (2) years and four (4) months, which is correctional in nature, 5 and prescribes in ten (10) years. 6However, Public Act No. 3326, as amended by Act 3585 and Act 3763, provides that "violations penalized by special laws shall, unless otherwise provided in such acts, prescribe in accordance with the following rules: (a) after a year for offenses punished only by a fine or by imprisonment for not more than one month, or both; (b) after four years for those punished by imprisonment for more than one month, but less than two years; (c) after eight years for those punished by imprisonment for two years or more, but less than six years; and (d) after twelve years for any other offense punished by imprisonment for six years or more, except the crime of treason, which shall
prescribe after twenty years", so that perjury which is punishable by imprisonment of from four (4) months and one (1) day to two (2) years and four (4) months prescribes after eight years. Penal statutes, substantive and remedial or procedural are, by consecrated rule, to be strictly applied against the government and liberally in favor of the accused. 7 As it would be more favorable to the herein accused to apply Section 129 of Commonwealth Act 141 and Act 3326, as amended, in connection with the prescriptive period of the offenses charged, the same should be applied. Considering, therefore, that the offenses were alleged to have been committed during the period from May 15, 1952 to February 2, 1953, with respect to Criminal Case No. 7613; from May 28, 1952 to August 18, 1952, with respect to Criminal Case No. 7614; and from November 16, 1951 to February 21, 1952, with respect to Criminal Case No. 7615, and the informations were filed only on March 13, 1962, or more than eight (8) years after the said offenses were allegedly committed, the lower court correctly ruled that the crimes in question had already prescribed. WHEREFORE, the judgment appealed from should be, as it is hereby, AFFIRMED. Without costs. SO ORDERED.1äwphï1.ñët Makasiar (Chairman), Guerrero, Abad Santos, De Castro and Escolin JJ., concur. Separate Opinions AQUINO, J., dissenting: I dissent with all due deference to Mr. Justice Concepcion's opinion. The crime is perjury under article 183 of the Revised Penal Code punished by arresto mayor maximum to prision correccional minimum, a correccional penalty. The crime prescribes in ten years under article 90 of the Revised Penal Code. Therefore, the ten-year prescriptive period under article 90 should be applied, not the eight-year period prescribed in Act No. 3326 as amended by Acts Nos. 3585 and 3763. The crimes alleged in Criminal Cases Nos. 7613 and 7614 were committed from May 15, 1952 to February 2, 1983 and from May 28 to August 18, 1952, respectively, As the informations in those two cases were filed on March 13, 1962, the ten-year period had not yet elapsed. Said ten-year period had elapsed with respect to the crime alleged in Criminal Case No. 7615. Only that crime had prescribed. Separate Opinions AQUINO, J., dissenting: I dissent with all due deference to Mr. Justice Concepcion's opinion. The crime is perjury under article 183 of the Revised Penal Code punished by arresto mayor maximum to prision correccional minimum, a correccional penalty. The crime prescribes in ten years under article 90 of the Revised Penal Code. Therefore, the ten-year prescriptive period under article 90 should be applied, not the eight-year period prescribed in Act No. 3326 as amended by Acts Nos. 3585 and 3763. The crimes alleged in Criminal Cases Nos. 7613 and 7614 were committed from May 15, 1952 to February 2, 1983 and from May 28 to August 18, 1952, respectively, As the informations in those two cases were filed on March 13, 1962, the ten-year period had not yet elapsed. Said ten-year period had elapsed with respect to the crime alleged in Criminal Case No. 7615. Only that crime had prescribed. G.R. No. L-26551 February 27, 1976 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. WENCESLAO ALMUETE FERNANDO FRONDA, FAUSTO DURION and CIPRIANO FRONDA, defendants-appellees. Solicitor General Antonio P. Barredo, Assistant Solicitor General Antonio G. Ibarra and Solicitor Vicente A. Torres for appellant. Emiliano D. Castellanes for appellees.
AQUINO, J.: Wenceslao Almuete Fernando Fronda, Cipriano Fronda and Fausto Durion were charged with a violation of section 39 of the Agricultural Tenancy Law. It was alleged in the information that in December, 1963, in Muñoz, Nueva Ecija the a ccused being tenants of Margarita Fernando in her riceland, without notice to her or without her consent, pre-threshed a portion of their respective harvests of five (5) cavans of palay each to her damage in the amount of P187.50 at P12.50 a cavan (Criminal Case No. SD-179, Court of First Instance of Nueva Ecija, Sto. Domingo Branch VI). Upon arraignment the accused pleaded not guilty. They filed motion for a bill of particulars as to the exact date of the commission of the offense charged. The lower court denied their motion because they had already entered their plea. Thereafter, they -filed a motion to quash the information on that grounds (1) that it does not allege f acts sufficient to constitute the crime charged; (2) that there is no law punishing it, and (3) that the court has, no jurisdiction over the alleged time The fiscal opposed the motion. The lower court granted the motion and dismissed the i nformation in its order of August 11, 1966. It held that the information is basically deficient because it does not describe t lie circumstances under which the cavans of palay were found in the possession of the accused tenants; it does not specify the date agreed upon for the threshing of the harvests, and it does not allege that the palay found in the tenants' possession exceeded ten percent of their net share based on the last normal harvest. The prosecution appealed from the order of dismissal. The Solicitor General argues in his brief that the information in this case alleges all the elements of the offense defined in section 39 of Republic Act No. 1199, as amended of Republic Act No. 2263. Sections 39 and 57 of the same law reads as follows: SEC. 39. Prohibition on Pre-threshing. — It shall be unlawful for either the tenant or landholder, without mutual consent, to reap or thresh a portion of the crop at any time previous to the date set for its threshing- That if the tenant n food for his family and the landholder does not or cannot furnish such and refuses to allow the tenant to reap or thresh a portion of the crop previous to the date set for its threshing, the tenant can reap or thresh not more than ten percent of his net share in the last normal harvest after giving notice thereof to the landholder or his representative. Any violation of this situation by either party shall be treated and penalized in accordance with this Act and/or under the general provisions of law applicable to that act committed. SEC. 57. Penal Provision. — Violation of the provisions of ... sections thirty-nine and forty-nine of this Act shall be punished by a fine not exceeding two thousand pesos or imprisonment not exceeding one year, or both, in the discretion of the Court. ... * We hold that the order of dismissal should be affirmed because as held in People vs. Adillo, L-23M, November 27, 1975, a case similar to the instant case, section 99 was impliedly repealed by the Agricultural Land Reform Code of 1963, as amended by Republic Act No. 6389 168 O.G. 915) and as implemented by Presidential Decrees Nos. 2, 27 and 316. That Code was already in force when the act complained of was committed. The re peal may be rationalized in this manner:
The prohibition against pre-reaping or pre-threshing found in section 39 of the Agricultural Tenancy Law of 1954 i s premised on the existence of the rice share tenancy system. The evident purpose is to prevent the tenant and the landholder from defrauding each other in the division of the harvests. The Agricultural Land Reform Code superseded the Agricultural Tenancy Law (except as qualified in sec tions 4 and 35 of the Code). The Code instituted the leasehold system and abolished share tenancy subject to certain conditions indicated in section 4 thereof. It is significant that section 39 is not reproduced in the Agricultural Land Reform Code whose section 172 repeals "all laws or part of any law inconsistent with" its provisions. Under the leasehold system the prohibition against pre-threshing has no, more raison d'etre because the lessee is obligated to pay a fixed rental as prescribed in section 34 of the Agricultural Land Reform Code, or the Code of Agrarian Reforms, as redesignated in Republic Act No. 6389 which took effect on September 10, 1971. Thus, the legal maxim, cessante ratione legis, cessat ipsa lex (the reason for the law ceasing, the law itself also ceases). applies to this case. Section 4 of the Code of Agrarian Reforms declared agricultural share tenancy throughout the country as contrary to public policy and automatically converted it to agricultural leasehold. Presidential Decree No. 2 proclaimed the entire country "as a land reform area". Presidential Decree No. 27 e mancipated the tenant from the bondage of the soil. And Presidential Decree No. 316 interdicted the ejectment or removal of the tenant-farmer from his farmholding until the promulgation of the rules and regulations implementing Presidential Decree No. 27. (See People vs. Adillo, supra). The legislative intent not to punish anymore the tenant's act of pre- reaping and pre-threshing without notice to the landlord is inferable from the fact that, as already noted, the Code of Agrarian Reforms did not reenact section 39 of the Agricultural Tenancy Law and that it abolished share tenancy which is the basis for penalizing clandestine pre-reaping and pre-threshing. All indications point to a deliberate and manifest legislative design to replace the Agricultural Tenancy Law with the Code of Agrarian Reforms, formerly the Agricultural Land Reform Code, at least as far as ricelands are concerned. As held in the Adillo case, the act of pre-reaping and pre-threshing without notice to the landlord, which is an offense under the Agricultural Tenancy Law, had ceased to be an offense under the subsequent law, the Code of Agrarian Reforms. To prosecute it as an offense when the Code of Agrarian Reforms is already in force would be repugnant or abhorrent to the policy and spirit of that Code and would subvert the manifest legislative intent not to punish anymore pre-reaping and pre-threshing without notice to landholder. It is a rule of legal hermeneutics that "an act which purports to set out in full all that it intends to contain operates as a repeal of anything omitted which was contain in the old act and not i ncluded in the amendatory act" (Crawford, Construction of Statutes, p. 621 cited in the Adillo case). A subsequent statute, revising the whole subject matter of a former statute, and evidently intended as a substitute for it, operates to repeal the former statute" (82 C.J.S. 499). 'The revising statute is in effect a 'legislative decla ration that whatever is embraced in the new statute shall prevail, and whatever is excluded therefrom shall be discarded" (82 C.J.S. 500). The repeal of appeal law deprives the courts of jurisdiction to punish persons charged with a violation of the old penal law prior to its repeal (People vs. Tamayo, 61 Phil. 225; People vs. Sindiong and Pastor, 77 Phil. 1000; People vs. Binuya, 61 Phil. 20 8; U.S. vs. Reyes, 10 Phil. 423; U.S. vs. Academia, 10 Phil. 431. See dissent in Lagrimas vs. Director of Prisons, 57 Phil. 247, 252, 254). WHEREFORE, the order of dismissal is affirmed with costs de oficio. SO ORDERED. Fernando (Chairman), Antonio, Concepcion, Jr. and Martin, JJ., concur. Barredo, J., took no part. Martin, J., was designated to sit in the Second Division. G.R. No. L-3859 March 25, 1952 PHILIPPINE RAILWAY CO., plaintiff-appellant, vs. COLLECTOR OF INTERNAL REVENUE, defendant-appellee. Ross, Selph, Carrascoso and Janda for appellant. Office of the Solicitor General Felix Bautista Angelo and Solicitor Jose P. Alejandro for appelle.
TUASON, J.: This case was submitted for decision in the court below upon an agreed statement of facts as follows: 1. The plaintiff is engaged in business as operator of a railway line on Panay Island by virtue of the franchise granted by the Philippine Government under Act 1497 (enacted on May 28, 1906); and defendant is the duly appointed, qualified and incumbent Collector of internal Revenue; 2. During the fourth quarter of 1946 plaintiff realized from the business covered by its franchise a total gross receipts of P364,845.67, on which plaintiff paid a franchise tax of 1 1/2 per cent amounting to P5,532.69, in accordance with Sec. 13 of Act No. 1497; 3. On September 5, 1947, defendant notified the plaintiff that the tax due on its gross receipts from the business covered by the franchise is 5 per cent and not only 1 1/2 per cent of such gross receipts, and demanded as a consequence a deficiency tax of P12,714.61 plus a 25 per cent surcharge of P3,178.65 incident to delinquency, or a total of P15,893.26, which plaintiff paid to defendant on January 20, 1948; 4. During the year 1947 plaintiff realized from the business covered by the same franchise a total gross receipts of P976,712. Plaintiff, in order to avoid the imposition of the surcharge, paid franchise tax of P48,835.60 computed at the rate of 5 per cent of the total gross receipts; 5. On April 26, 1948, plaintiff, thru counsel presented to the defendant a claim f or the refund of the amounts of P15,893.26 and P34,184.92, representing the difference between the franchise taxes for the years 1946 (one quarter) and 1947 at the rate of 5 percent and the same taxes at the rate of 1 1/2 per cent. 6. On July 1, 1948, plaintiff received a letter from the Collector of In ternal Revenue dated June 10, 1948, demanding from plaintiff a deficiency franchise tax of P2,108.18, plus surcharge of 25 per cent or a total of P2,635.22 This deficiency assessment was based on the finding of an Auditor of the General Auditing Office as a result of the annual audit of the business covered by the franchise of plaintiff c orporation, that the total gross income of plaintiff for the year 1947 was P1,019,301.89 instead of P976,712, or a difference of P42,589.89. On July 12, 1948, the plaintiff paid to the City Treasurer of Iloilo the sum of P2,108.18, representing the franchise tax e xcluding the surcharge at the rate of 5 per cent of the gross receipts or income. However, plaintiff has not yet paid the sum of P527.04 demanded by defendant as 25 per cent surcharge on the deficiency franchise tax; 7. On June 12, 1948 the defendant denied the claim of the plaintiff for the refund of the aforesaid sums of P15,893.26 and P34,184.92; 8. The parties reserve the right to present additional evidence at the of this case.
Plaintiff's contentions are that it is subject to 1 1/2 tax only under Section 13 of Act No. 1497 of the Philippine Commission, which provides: Sec. 13. In consideration of the premises and of the granting of this concession or franchise, there shall be paid by the grantee to the Philippine Government, annually, for the period of thirty years from the date hereof, an amount equal to one-half of one per centum of the gross earnings of the grantee in respect to the lines covered hereby for each preceding year; after said period of thirty years and for fifty years thereafter, the amount so to be paid annually shall be an amount equal to one and one-half per centum of such gross earnings for each preceding year, and after such period of eighty years the percentage and amount so to be paid annually to grantee shall be fixed by the Philippine Government. Such annual payments, when promptly and fully made by the grantee, shall be in lieu of all taxes of every name and nature — municipal, provincial, or central — upon its capital stock, franchises, right of way, earnings, and all other property owned or operated by the grantee under this concession or franchise. On the other hand, the Collector of Internal Revenue, sustained by the trial court, relied upon Section 259 of the National Internal Revenue Code, as amended by Republic Act No. 39, which reads as follows: Sec. 259. Tax on corporate franchises. — There shall be collected in respect to all exi sting and future franchises, upon the gross earnings or receipts from the business covered by the law granting the franchise of 5 per centum or such taxes, charges, and percentages as are specified in the special charters of the corporation upon whom such franchises are conferred, whichever is higher, unless the provisions thereof preclude the imposition of a higher tax. For the purpose of facilitating the assessment of this tax, reports shall be made by the respective holders of the franchise in such form and at such times as shall be required by the regulations of the Department of Finance. The taxes, charges, and percentages on corporate franchises, shall be due and payable as specified in the particular franchise, or, in case no time limit is specified therein, the provisions of Section one hundred eighty-three shall apply; and if such taxes, charges, and percentages remain unpaid for fifteen days from and after the date on which they must be paid, twenty-four per centum shall be added to the amount of such taxes, charges, percentages, which increase shall form part of the tax. From our view of the case the decisive question is whether the National Internal Revenue Code amended the plaintiff's franchise. Four-square with the case at bar on this point, by reason of the exact or close similarity between the franchises and the laws involved and the issues litigated, is Manila Railroad Company vs. Rafferty, 40 Phil., 224. In that case, the defendant as Collector of Internal Revenue had assessed a tax on certain oil and coal which the Manila Railroad Company had imported to the Philippines for its use, in virtue of an act of Congress which authorized the imposition by the Philippine Government of internal revenue tax upon like articles consumed in the Philippines. Against that enactment, the Manila Railroad Company pointed to its charter, which (like the Philippine Railway's charter) fixed c ertain percentage tax on its earnings and declared that "such payments, when promptly and fully made, by the grantee, shall be in lieu of all taxes of every name and nature." As formulated by the Court the question then was: "May a special law or charter be amended altered, or repealed, by general law, by implication?" The Court answered this query in the negative. Because of its controlling effects on the present case we will qu ote at length from the decision. It will be noted that Act No. 1510 is a private charter granted to the plaintiff; that said Acts of Congress aregeneral laws. A careful reading of said Acts of Congress fails to discloses any reference to, or any attempt to amend, alter, or repeal, said special charter (Act no. 1510); and no other Act of Congress has been called to our attention, which in any way attempts to amend, alter, or repeal said Act (No. 1510). And it must be borne in mind that said charter (Act No. 1510) i s subject to amendment, alteration, or repeal onlyby an Act of the Congress of the United States. x x x xxx xxx Repeals of laws by implication are not favored; and the mere repugnance between two statutes should be very clear in order to warrant the court inholding that the later i n time repeals the other, when it does not in terms purport to do so. (Cooley's Constitutional Limitations (6th Ed.), p. 182 and cases cited; Sutherland Stat. Construction, Vol. 1, p.465 (2d Ed.);Kinney vs. Mallory, 3 Ala., 626; Banks vs. Yolo Country, 104 Cal., 258; People vs. Pacific Import Co., 130 Cal., 442; Reese vs. Western Union etc. Co., 123 Ind., 294; 7 L. R. A., 583; Cope vs. Cope, 137 U.S.., 628.) In the case of McKenna vs. Eduardstone (91 N.Y., 231) the court said: "It i s well settled that a special and local statute, providing for a particular case or class of case, is not repealed by a subsequent statute,general in its terms, provisions and applications, unless the intent to repeal or alte r is manifest, although the terms of the general act are broad enough to include the cases embraced in a special law." That the rule is but the application of the larger rule that the statute is not to be deemed repealed, by implication, by subsequent act upon the same subject unless the two are manifestly inconsistent with, and repugnant to, each other, or unless a clear i ntention is disclosed on the face of the later statute to repeal the former one. It is a canon of statutory construction that a later statute, general in its terms and not expressly repealing a prior special statute, will ordinarily not affect the special provision of such earlier statute. (Steamboat Company vs. Collector, 18 Wall. (U.S.), 478; Cass Country vs. Gillet, 100 U.S. 585; Minnesota vs. Hitchcock, 185 U. S. 373, 396.) Where there are two statutes, the earlier special and the later general — the terms of the general broad enough to include the matter provided for in the special — the fact that one is special and the other is general creates a presumption that a special is to be considered as remaining an exception to the general, one as the general law of a land, and the other as the law of a particular case. (State vs. Stoll, 17 Wall. (U.S.), 425) Said Act No. 1510 is a charter granted to the plaintiff company by the Government of the Philippine Islands. It is a nature of a private contract. It is not a law constituting a part of the machinery of the general government. It was adopted after careful consideration of the private rights of the plaintiff in relation with the resultant benefits to the State. It stands upon a different footing from general law. When a charter is grated it constitutes a certain property right . Charters of special laws, such as Act No. 1510, stand upon a different footing from general laws. Once granted a charter becomes a private contract and cannot be altered nor amended except by c onsent of all concerned, unless the right i s expressly reserved. (Darmouth College vs. Woodword, 4 Wheat., 578.) The reason for the rule is clear. The legislature, in passing a special charter, have their attention directed to the special facts and circumstances which the Act or charter i s intended to meet. The Legislature consider and make provision for all the circumstances of the particular case in granting a special charter, it will not be considered that the Legislature, by adopting a general law containing provisions repugnant to the provisions of the charter, and without making any mention of its i ntention to amend or modify the charter, intended to amend, repeal, or modify the special act. (Lewis vs. Cook Country, 74 Ill. App., p. 151, Philippine Railway Co. vs. Nolting, 34 Phil. 401.) We can press further the reasons why a statute will not be construed as in exercise of the power of amendment or revocation unless the intention to amend or revoke the charter clearly appears, by citing two other American decisions. In Union Pacific Railroad Co. vs Laramie Stock Yards Co., 231 U.S. 179, 190, 58 L. Ed. 179, the United States S upreme Court held that Congress could not be deemed to have exerci sed its right to alter, amend, or repeal reserved in the railroad company's
charter, by the enactment of the posterior law of general character. The court said: "The excercise of such power would naturally only find an impulse in some large national purpose, and would hardly be provoked by a desire to legalize the encroachment here and thereon the right of a transcontinental railroad. We are constrained to believed that the Congress intends to forfeit of limit any of the rights conveyed to aid that great enterprise, it will do so explicity and directly by a measure proportionate to the purpose, and not leave it to be accomplished in a piecemeal and precarious way. And in Wilmington & R. R. Co. vs. Downward et al., 32 Atl. 133, the Court of Errors and Appeals of Delaware had this to say.: "It is only reasonable to suppose that when such a course is intended in any case it will be marked by legislative language of purpose, direct and not inferential. While the constitution makes no requirement of form or method for the act, yet, in view of the nature of such a stupendous power, and the consequences to flow or ensue from its exercise, a legislature (it is fair to presume) would not leave its purpose so uncertain as to require the aid of one of its own courts to ascertain declare it. There would be some expression, in some form or other, that the act relied upon to create revocation was intended for that purpose. I do not mean to be understood as saying that the legislature may not adopt its own method of revoking a charter, but I do believe the act would seem to the body to require expression of purpose to revoke, and would have such purpose distinctly put forth therein. And, looking at the subject in this light, I do not think any court of this state should yield to a mere inference of design to revoke, when language importing purpose of revocation is wanting. The proper view, I think, is that the legislature, by the act of February 22, 1877, did not intend to revoke the charter aforesaid, but only that which is plainly expressed, as quoted above." We not only do not discover in the National Internal Revenue Code any intention to levy a higher percentage tax on existing franchises, but, on the contrary, this Code evinces the purpose of respecting the tax rates incorporated in the charters. Section 259 thereof, as has been seen, specifically exempts franchises "whose provisions . . . preclude the imposition of a higher tax." To what provisions does this exception refer? As applied to the plaintiff's franchise, we can think of no provisions which the Congress could have in mind other than those which are embodied in the last paragraph of Section 13 of Act No. 1497, namely, "such annual payment, when promptly and fully made by the grantee, shall be in lieu of all taxes of every name and nature — municipal, provincial, or central — upon its capital stock, franchises, right of way, earnings, and all other property owned or operated by the grantee under this concession of franchise." We are therefore of the opinion that section 259 of the National Internal Revenue Code, as amended by Republic Act No. 39, does not apply to plaintiff's franchise. With this conclusion, it is unnecessary to go into the controversy concerning the power of the Government to change the tax fixed in the plaintiff's charter or to impose the new tax thereon or its other property. Nevertheless it may be of the interest to note, by way of statement only, that in Philippine Railway Co. vs. Nolting, 34 Phil. 401, the Court went so far as to say that "The plaintiff had a right to believe, when it accepted said contract, that it would be reli eved of all the burdens imposed by the Government, when it promptly and fully paid the amount imposed by section 13 (No. 13 of Section 1). Upon the foregoing considerations, the appealed judgement will be reversed and the appellee ordered to refund to the appellant the sums of P15,893.26 and P34,184.92 with legal interest thereon from the date of collection and to pay costs. Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes and Jugo, JJ ., concur. [G.R. No. 124043. October 14, 1998] COMMISSIONER OF INTERNAL REVENUE, petitioner, vs. COURT OF APPEALS, COURT OF T AX APPEALS and YOUNG MEN‘S CHRISTIAN ASSOCIATION OF THE PHILIPPINES, INC., respondents. DECISION PANGANIBAN, J.: Is the income derived from rentals of real property owned by the Young Men‘s Christian Association of the Philippines, Inc.
(YMCA) – established as ―a welfare, educational a nd charitable non- profit corporation‖ -- subject to income tax under the National Internal Revenue Code (NIRC) and the Constitution? The Case This is the main question raised before us in this petition for review on certiorari challenging two Resolutions issued by the Court of Appeals[1] on September 28, 1995[2] and February 29, 1996[3] in CA-GR SP No. 32007. Both Resolutions affirmed the Decision of the Court of Tax Appeals (CTA) allowing the YMCA to clai m tax exemption on the latter‘s income from the lease of its real property. The Facts The Facts are undisputed.[4] Private Respondent YMCA is a non-stock, non-profit institution, which conducts various programs and activities that are beneficial to the public, especially the young people, pursuant to its religious, educational and charitable objectives. In 1980, private respondent earned, among others, an income of P676,829.80 from leasing out a portion of its premises to small shop owners, like restaurants and canteen operators, and P44,259.00 from parking fees collected from non-members. On July 2, 1984, the commissioner of internal revenue (CIR) issued an assessment to private respondent, in the total amount of P415,615.01 including surcharge and interest, for deficiency income tax, deficiency expanded withholding taxes on rentals and professional fees and deficiency withholding tax on wages. Private respondent formally protested the assessment and, as a supplement to its basic protest, filed a letter dated October 8, 1985. In reply, the CIR denied the claims of YMCA. Contesting the denial of its protest, the YMCA filed a petition for review at the Court if Tax Appeals (CTA) on March 14, 1989. In due course, the CTA issued this ruling in favor of the YMCA: ―xxx [T]he leasing of private respondent‘s facilities to small shop owners, to restaurant and canteen operators and the opera tion of the parking lot are reasonably incidental to and reasonably necessary for the accomplishment of the objectives of the [private respondents]. It appears from the testimonies of the witnesses for the [private respondent] particularly Mr. James C. Delote, former accountant of YMCA, that these facilities were leased to members and that they have to service the needs of its members and their guests. The Rentals were minimal as for example, the barbershop was only charged P300 per month. He also testified that there was actually no lot devoted for parking space but the parking was done at the sides of the building. The parking was primarily for members with stickers on the windshields of their cars and they charged P.50 for non-members. The rentals and parking fees were just enough to cover the costs of operation and maintenance only. The earning[s] from these rentals and parking charges including those from lodging and other charges for the use of the recreational facilities constitute [the] bulk of its income which [is] channeled to support its many activities and attainment of its objectives. As pointed out earlier, the membership dues are very insufficient to support its program. We find it reasonably necessary therefore for [private respondent] to make [the] most out [of] its existing facilities to earn some income. It would have been different if under the circumstances, [private respondent] will purchase a lot and convert it to a parking lot to cater to the needs of the general public for a fee, or construct a building and lease it out to the highest bidder or at the market rate for commercial purposes, or should it invest its funds in the buy and sell of properties, real or personal. Under these circumstances, we could conclude that the activities are already profit oriented, not incidental and reasonably necessary to the pursuit of the objectives of the association and therefore, will fall under the last paragraph of section 27 of the Tax Code and any income derived therefrom shall be taxable.
―Considering our findings that [private respondent] was not enga ged in the business of operating or contracting [a] parking lot, we find no legal basis also for the imposition of [a] deficiency fixed tax and [a] contractor‘s tax in the amount[s] of P353.15
and P3,129.73, respectively. x x x
xxx
xxx
―WHEREFORE, in view of all the foregoing, the following assessments are hereby dismissed for lack of merit: 1980 Deficiency Fixed Tax – P353,15; 1980 Deficiency Contractor‘s Tax – P3,129.23; 1980 Deficiency Income Tax – P372,578.20.
While the following assessments are hereby sustained: 1980 Deficiency Expanded Withholding Tax – P1,798.93; 1980 Deficiency Withholding Tax on Wages – P33,058.82 plus 10% surcharge and 20% interest per annum from July 2, 1984 until fully paid but not to exceed three (3) years pursuant to Section 51 (e)(2) & (3) of the National Internal Revenue Code effective as of 1984.‖[5] Dissatisfied with the CTA ruling, the CIR elevated the case to the Court of Appeals (CA). In its Decision of February 16, 1994, the CA[6] initially decided in favor of the CIR and disposed of the appeal in the following manner: ―Following the ruling in the afore -cited cases of Province of Abra vs. Hernando and Abra Valley College Inc. vs. Aquino, the ruling of the respondent Court of Tax Appeals that ‗the leasing of petitioner‘s (herein respondent) facilities to small shop owners, to restaurant and canteen operators and the operation of the parking lot are reasonably incidental to and reasonably necessary for the accomplishment of the objectives of the petitioners,' and the income derived therefrom are tax exempt, must be reversed. ―WHEREFORE, the appealed decision i s hereby REVERSED in so far as it dismissed the assessment for:
1980 Deficiency Income Tax 1980 Deficiency Contr actor‘s Tax 1980 Deficiency Income Tax
P
353.15 P 3,129.23, & P372,578.20,
but the same is AFFIRMED in all other respect.‖[7]
Aggrieved, the YMCA asked for reconsideration based on the following grounds: I ―The findings of facts of the Public Respondent Court of Tax Appeals being supported by substantial evidence [are] final
and conclusive. II ―The conclusions of law of [p]ublic [r]espondent exempting [p]rivate [r]espondent from the income on rentals of small shops and parking fees [are] in accord with the applicable law and jurisprudence.‖ [8]
Finding merit in the Motion for Reconsideration filed by the YMCA, the CA reversed itself and promulgated on September 28, 1995 its first assailed Resolution which, in part, reads: ―The Court cannot depart from the CTA‘s findings of fact, as they are supported by evidence beyond what is considered as substantial. x x x xxx xxx ―The second ground raised is that the r espondent CTA did not err i n saying that the rent al from small shops and parking fees do not result in the loss of the exemption. Not even the petitioner would hazard the suggestion that YMCA is designed for profit. Consequently, the little income from small shops and parking fees help[s] to keep its head above the water, so to speak, and allow it to continue with its laudable work. ―The Court, therefore, finds the sec ond ground of the motion to be meritorious and in accord with law and jurisprudence. ―WHEREFORE, the motion for reconsideration is GRANTED; the respondent CTA‘s deci sion is AFFIRMED in toto.‖[9] The internal revenue commissioner‘s own Motion for Reconsideration was denied by Respondent Court in its s econd
assailed Resolution of February 29, 1996. Hence, this petition for review under Rule 45 of the Rules of Court .[10] The Issues Before us, petitioner imputes to the Court of Appeals the following errors: I ―In holding that it had departed from the findings of fact of Respondent Court of Tax Appeals when it rendered its Decision
dated February 16, 1994; and II ―In affirming the conclusion of Respondent Court of Tax Appeals that the income of private respondent from rentals of small shops and parking fees [is] exempt from taxation.‖[11] This Court‘s Ruling
The Petition is meritorious. First Issue: Factual Findings of the CTA Private respondent contends that the February 16, 1994 CA Decision reversed the factual findings of the CTA. On the other hand, petitioner argues that the CA merely reversed the ―ruling of the CTA that the leasing of private respondent‘s facilities to small shop owners, to restaurant and canteen operators and the operation of parking lots are reasonably incidental to and reasonably necessary for the accomplishment of the objectives of the private respondent and that the income derived therefrom are tax exempt.‖[12] Petitioner insists that what the appellate court reversed was the legal conclusion, not the factual finding, of the CTA.[13] The commissioner has a point. Indeed, it is a basic rule in taxation that the factual findings of the CT A, when supported by substantial evidence, will not be disturbed on appeal unless it is shown that the said court committed gross error in the appreciation of facts .[14] In the present case, this Court finds that the February 16, 1994 Decision of the CA did not deviate from this rule. The latter merely applied the law to the facts as found by the CTA and ruled on the issue raised by the CIR: ―Whether or not the collection or earnings of rental income from the lease of certain premises and income earned from parking fees shall fall under the last paragraph of Section 27 of the National Internal Revenue Code of 1977, as amended.‖ [15] Clearly, the CA did not alter any fact or evidence. It merely resolved the aforementioned issue, as indeed it was expected to. That it did so in a manner different from that of the CTA did not necessarily imply a reversal of factual findings. The distinction between a question of law and a question of fact is clear-cut. It has been held that ―[t]here is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts; there is a question of fact when the doubt or difference arises as to the truth or falsehood of alleged facts.‖ [16] In the present case, the CA did not doubt, much less change, the facts narrated by the CTA. It merely applied the law to the facts. That its interpretation or conclusion is different from that of the CTA is not irregular or abnormal. Second Issue: Is the Rental Income of the YMCA Taxable?
We now come to the crucial issue: Is the rental income of the YMCA from its real estate subject to tax? At the outset, we set forth the relevant provision of the NIRC: ―SEC. 27. Exemptions from tax on corporations. -- The following organizations shall not be taxed under this Title in respect to income received by them as such - x x x xxx xxx (g) Civic league or organization not organized for profit but operated exclusively for the promotion of social welfare; (h) Club organized and operated exclusively for pleasure, recreation, and other non-profitable purposes, no part of the net income of which inures to the benefit of any private stockholder or member; x x x xxx xxx Notwithstanding the provision in the preceding paragraphs, the income of whatever kind and character of the foregoing organization from any of their properties, real or pers onal, or from any of their activities conducted for profit, regardless of the disposition made of such income, shall be subject to the tax imposed under this Code. (as amended by Pres. Decree No. 1457)‖
Petitioners argues that while the income received by the organizations enumerated in Section 27 (now Section 26) of the NIRC is, as a rule, exempted from the payment of tax ―in respect to income received by them as such,‖ the exemption does not apply to income derived ―xxx from any if their properties, real or personal, or from any of their activities conducted for profit, regardless, of the disposition made of such i ncome xxx.‖ Petitioner adds that ―rented income derived by a tax -exempt organization from the lease of its properties, real or personal,
[is] not, therefore, exempt from income taxation, even if such income [is] exclusively used for the accomplishment of its objectives.‖[17] We agree with the commissioner. Because taxes are the lifeblood of the nation, the Court has always applied the doctrine of strict interpretation in construing tax exemptions.[18] Furthermore, a claim of statutory exemption from taxation should be manifest and unmistakable from the language of the law on which it is based. Thus, the claimed exemption ―must expressly be granted in a statute stated in a language too clear to be mistaken.‖[19] In the instant case, the exemption claimed by the YMCA is expressly disallowed by the very wording of the last paragraph of then Section 27 of the NIRC which mandates that the income of exempt organizations (such as the YMCA) from any of their properties, real or personal, be subject to the imposed by the same Code. Because the last paragraph of said section unequivocally subjects to tax the rent income f the YMCA from its rental property ,[20] the Court is duty-bound to abide strictly by its literal meaning and to refrain from resorting to any convoluted attempt at construction. It is axiomatic that where the language of the law is clear and unambiguous, its express terms must be applied.[21] Parenthetically, a consideration of the question of construction must not even begin, particularly when such question is on whether to apply a strict construction or a literal one on statutes that grant tax exemptions to ―religious, c haritable and educational propert[ies] or institutions.‖ [22] The last paragraph of Section 27, the YMCA argues, should be ―subject to the qualification that the income from the properties must arise from activities ‗conducted for profit‘ before it may be considered taxable. ‖[23] This argument is
erroneous. As previously stated, a reading of said paragraph ineludibly shows that the income from any property of exempt organizations, as well as that arising from any activity it conducts for profit, is taxable. The phrase ―any of their activities conducted for profit‖ does not qualify the word ―properties.‖ This makes income from the property of the organization taxable, regardless of how that income is used -- whether for profit or for lofty non-profit purposes. Verba legis non est recedendum. Hence, Respondent Court of Appeals committed reversible error when it allowed, on reconsideration, the tax exemption claimed by YMCA on income it derived from renting out its real property, on the solitary but unconvincing ground that the said income is not collected for profit but is merely incidental to its operation. The law does not make a distinction. The rental income is taxable regardless of whence such income is derived and how it used or disposed of. Where the law does not distinguish, neither should we. Constitutional Provisions on Taxation Invoking not only the NIRC but also the fundamental law, private respondent submits that Article VI, Section 28 of par. 3 of the 1987 Constitution,[24] exempts ―charitable institutions‖ from the payment not only of p roperty taxes but also of income tax from any source.[25] In support of its novel theory, it compares the use of the words ―charitable institutions,‖ ―actually‖ an d ―directly‖ in the 1973 and the 1987 Constitutions, on the hand; and in Article VI Section 22, par. 3 of the 1935 Constitution , on the other hand.[26] Private respondent enunciates three points. First, the present provision is divisible into two categories: (1) ―[c]haritable institutions, churches and parsonages or convents appurtenant thereto, mosques and non- profit cemeteries,‖ the incomes of which are, from whatever source, all tax-exempt ;[27] and (2) ―[a]ll lands, buildings and improvements actually and directly used for religious, charitable or educational purposes, ‖ which are exempt only from property taxes .[28] Second, Lladoc v. Commissioner of Internal Revenue,[29] which limited the exemption only to the payment of property taxes, referred to the provision of the 1935 Constitution and not to its counterparts in the 1973 and the 1987 Constitutions .[30] Third, the phrase ―actually, directly and exclusively used for religious, charitable or educational purposes‖ refers not only to ―all lands, buildings and improvements,‖ but also to the above -quoted first category which includes charitable institutions like the private respondent.[31] The Court is not persuaded. The debates, interpellations and expressions of opinion of the framers of the Constitution reveal their intent which, in turn, may have guided the people in ratifying the Charter .[32] Such intent must be effectuated. Accordingly, Justice Hilario G. Davide, Jr., a former constitutional commissioner, who is now a member of this Court, stressed during the Concom debates that ―xxx what is exe mpted is not the institution itself xxx; those exempted from real estate taxes are lands, buildings and improvements actually, directly and exclusively used for religious, charitable or educational purposes.‖[33] Father Joaquin G. Bernas, an eminent authority on the Constitution and also a member of the Concom, adhered to the same view that the exemption created by said provision pertained only to property taxes .[34] In his treatise on taxation, Mr. Justice Jose C. Vitug concurs, stating that ―[t]he tax exemption covers property taxes only."[35] Indeed, the income tax exemption claimed by private respondent finds no basis in Article VI, Section 28, par. 3 of the Constitution. Private respondent also invokes Article XIV, Section 4, par. 3 of the Charter ,[36] claiming that the YMCA ―is a non -stock, nonprofit educational institution whose revenues and assets are used actually, directly and exclusively for educational purposes so it is exempt from taxes on its properties and income. ‖[37] We reiterate that private respondent is exempt from the payment of property tax, but not income tax on the rentals from its property. The bare allegation alone that it is a non-stock, non-profit educational institution is insufficient to justify its exemption from the payment of income tax. As previously discussed, laws allowing tax exemption are construed strictissimi juris. Hence, for the YMCA to be granted the exemption it claims under the aforecited provision, it must prove with substantial evidence that (1) it falls under the classification non-stock, non-profit educational institution; and (2) the income it seeks to be exempted from taxation is used actually, directly, and exclusively for educational purposes. However, the Court notes that not a scintilla of evidence was submitted by private respondent to prove that it met the said requisites.
Is the YMCA an educational institution within the purview of Article XIV, Section 4, par.3 of the Constitution? We rule that it is not. The term ―educational institution‖ or ―institution of learning‖ has acquired a well -known technical meaning, of which the members of the Constitutional Commission are deemed cognizant .[38] Under the Education Act of 1982, such term refers to schools.[39] The school system is synonymous with formal education ,[40] which ―refers to th e hierarchically structured and chronological graded learnings organized and provided by the formal school system and for which certification is required in order for the learner to progress through the grades or move to the higher levels.‖ [41] The Court has examined the ―Amended Articles of Incorporation‖[42] and ―By-Laws‖[43] of the YMCA, but found nothing in them that even hints that it is a school or an educational institution.[44] Furthermore, under the Education Act of 1982, even non-formal education is understood to be school- based and ―private auspices such as foundations and civic- spirited organizations‖ are ruled out.[45] It is settled that the term ―educational institution,‖ when used in laws granting tax exemptions, refers to a ― xxx school seminary, college or educational establishm ent xxx.‖[46] Therefore, the private respondent cannot be deemed one of the educational institutions covered by the constitutional provision under consideration. ―xxx Words used in the Constitution are to be taken in their ordinary acceptation. While in its broadest and best sense education embraces all forms and phrases of instruction, improvement and development of mind and body, and as well of religious and moral sentiments, yet in the common understanding and application it means a place where systematic instruction in any or all of the useful branches of learning is given by methods common to schools and institutions of learning. That we conceive to be the true intent and scope of the term [educational institutions,] as used i n the Constitution.‖[47] Moreover, without conceding that Private Respondent YMCA is an educational institution, the Court also notes that the former did not submit proof of the proportionate amount of the subject income that was actually, directly and exclusively used for educational purposes. Article XIII, Section 5 of the YMCA by-laws, which formed part of the evidence submitted, is patently insufficient, since the same merely signified that ―[t]he net income derived from the rentals of the commercial buildings sha ll be apportioned to the Federation and Member Associations as the National Board may decide .‖[48] In sum, we find no basis for granting the YMCA exemption from income tax under the c onstitutional provision invoked Cases Cited by Private Respondent Inapplicable The cases[49] relied on by private respondent do not support its cause. YMCA of Manila v. Collector of Internal Revenue[50] and Abra Valley College, Inc. v. Aquino [51] are not applicable, because the controversy in both cases involved exemption from the payment of property tax, not income tax. Hospital de San Juan de Dios, Inc. v. Pasay Cit y[52] is not in point either, because it involves a claim for exemption from the payment of regulatory fees, specifically electrical inspection fees, imposed by an ordinance of Pasay City -- an issue not at all related to that involved in a claimed exemption from the payment if income taxes imposed on property leases. In Jesus Sacred Heart College v. Com. Of Internal Revenue ,[53] the party therein, which claimed an exemption from the payment of income tax, was an educational institution which submitted substantial evidence that the income subject of the controversy had been devoted or used solely for educational purposes. On the other hand, the private respondent in the present case had not given any proof that it is an educational institution, or that of its rent income is actually, directly and exclusively used for educational purposes. Epilogue In deliberating on this petition, the Court expresses its sympathy with private respondent. It appreciates the nobility its cause. However, the Court‘s power and function are limited merely to applying the l aw fairly and objectively. It cannot change the law or bend it to suit its sympathies and appreciations. Otherwise, it would be overspilling its role and invading the realm of legislation. We concede that private respondent deserves the help and the encouragement of the government. It needs laws that can facilitate, and not frustrate, its humanitarian tasks. But the Court regrets that, given its limited constitutional authority, it cannot rule on the wisdom or propriety of legislation. That prerogative belongs to the political departments of government. Indeed, some of the member of the Court may even believe in the wisdom and prudence of granting more tax exemptions to private respondent. But such belief, however well-meaning and sincere, cannot bestow upon the Court the power to change or amend the law. WHEREFORE, the petition is GRANTED. The Resolutions of the Court of Appeals dated September 28, 1995 and February 29, 1996 are hereby dated February 16, 1995 is REVERSED and SET ASIDE. The Decision of the Court of Appeals dated February 16, 1995 isREINSTATED, insofar as it ruled that the income tax. No pronouncement as to costs. SO ORDERED. Davide, Jr. (Chairman), Vitug and Quisumbing, JJ., concur. Bellosillo, J., see Dissenting Opinion. June 10, 1976 G.R. No. L-23587-88 LUCAS RAMIREZ and ENCARNACION FAJARDO RAMIREZ, petitioners, vs. THE HONORABLE COURT OF APPEALS, respondent. Norberto J. Quisumbing, Sedfrey A. Ordonez and Gatchalian & Sison for petitioners. Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A. Torres and Solicitor Octavio R. Ramirez for respondent. Esguerra, J.:
Before Us is a joint petition for certiorari to review the decision dated May 22, 1964 of the Court of Appeals, affirming the judgment of the Court of First Instance, Manila Branch XVI, in its Criminal Cases Nos. 33438, 33439 and 33440 convicting the spouses Lucas Ramirez and Encarnacion Fajardo Ramirez of the crime of falsification of public, official and/or commercial documents punishable under Section 172, paragraph 1, of the Revised Penal Code, and sentencing each of them in each case to not less than six (6) months of arresto mayor and not more than three (3) years, six (6) months and twenty- one (21) days of prision correccional to pay a fine of P1,000.00 and one-half of the costs in each case. The record discloses the following facts: On December 9, 1949, the Central Bank of the Philippines, beset by an exchange cri sis and pursuant to Section 14 (Exercise of Authority) and 74 (Emergency Restrictions on Exchange Operation) of Republic Act 265, otherwise known as the Central Bank Act, issued Circular No. 20 designed to protect the international reserve during the said crisis. It subjected all transactions in gold and foreign exchange to a previous licensing by the Central Bank. To implement the said circular, guiding principles governing the licensing of foreign exchange for the payment of imports were promulgated and embodied in Circular No. 4 4 issued on June 12, 1953, and made effective July 1, 1953. It created the Bankers Committee to process applications of new importers who were made to accomplish and submit, among others, through local authorized banks, documents such as Balance Sheets, Profit and Loss Statements, Schedule of Monthly Sales and Merchandise Inventory to show that they met the c riteria set by the Central Bank for new importers. These documents were further required to be certified to by an independent Certified Public Accountant.
Further restrictions were imposed by subsequent circulars, all of which were devised to combat the then prevailing exchange crisis. Against this backdrop, Criminal Cases Nos. 33438, 33439 and 33440, each entitled People vs. Lucas Ramirez, Encarnacion Ramirez and Ligaya Bernardino, People vs. Lucas Ramirez, Encarnacion Ramirez and Salustia Lasin and People vs. Lucas Ramirez, Encarnacion Ramirez and Natalia Caparaz, respectively, were filed, all for fal sification of public, official and or commercial documents, spawned by a raid of Room 308 of the Quisumbing bldg. at Dasmarinas Street, Manila, which room was then leased by Mrs. Encarnacion Fajardo Ramirez. The search which was conducted by the NBI agents and Jose Aquino, a Central Bank confidential agent, yielded voluminous documents among which were duplicates of the papers submitted by applicantimporters Bernardino, Lasin and Caparaz duly certified by Segundo Esguerra, A CPA but which were allegedly falsified. Criminal Case No. 33438 was eventually dismissed for failure of the prosecution to establish falsification and also because o ne of the accused, Bernardino, remained at large. In Criminal Case No. 33439 the information reads as follows: That on or about the period comprised between December 28, 1953 and May 12, 1954, inclusive, in the City of Manila, Philippines, the said accused, conspiring and confederating together with others whose true names and Identities are still unknown, and helping one another, did then and there willfully, unlawfully and feloniously commit acts of falsification in the following manner, to wit: the said accused for the purpose of securing and obtaining dollar allocations or foreign exchange license for import payments, from the Central Bank of the Philippines, an agencies of instrumentality of the Government of the Republic of the Philippines, thru its lawfully authorized agent, the Philippine Bank of Communications, did then and there wi llfully, unlawfully and feloniously prepare, concoct, execute and accomplish or cause to be prepared, concocted and executed and accomplished the following public, official and commercial documents: 1. Application of Salustia Lasin to qualify as new importer, together with: a. Balance Sheet as of December 31, 1953; b. Profit and Loss Statement for the year ending December 31, 1953; c. Schedule of Monthly Sales as of December 31, 1953; d. Merchandise Inventory as of December 31, 1953. Income Tax Return f or 1953. 2. Information Sheet of Salustia Lasin as a new importer which documents have been executed under oath before a notary public and or officer authorized to administer oaths, as required by law and the regulations duly promulgated by the Monetary Board, Central Bank of the Philippines, pursuant toRepublic Act No. 265, and other records or documents connected therewith and required by to law to kept by merchants, by stating, narrating, making it appear and representing in the said documents that the accused Salustia Lasin was qualified, under the law and regulations of the Central Bank, as a new importer, being actively engaged in the general merchandise (textile) business, with an establishment at Nos. 1514-1515, Divisoria Market, in said city, continuously since July 1, 1953 operating on a paid-up capital of P23,500.00 with adequate distribution facilities, and that her purchases and gross sales of merchandise during the period from January 1, 1953 to December 31, 1953 amounted to P147,062.35 and P149,246.30, respectively and such other information or narration of facts pertinent thereto and in connection therewith, the said information, data and narration of facts being material for the purpose of said application, the said accused knowing fully well that their manifestations were all false and untrue and were made solely for the purpose of obtaining the said dollar allocations and foreign exchange license f or import Payments from the Central Bank of the Philippines; and the said accused, in furtherance of their conspiracy, submitted and filed the aforesaid documents with the said Central Bank of the Philippines thru its aforesaid duly authorized agent bank, vested by law with authority to determine and authorize the issuance of such dollar payments, securing and obtaining as a result thereof the approval of the application of said accused as a new importer and the issuance to her of a dollar allocation or foreign exchange license for import payments in the amount of $8,975.00, every semester, to the damage and prejudice of the Republic of the Philippines and or the Central Bank of the Philippines. Criminal Case No. 33440 likewise charged the spouses Lucas and Encarnacion Ramirez with the same offense, with Natalia Caparaz as co-accused. In the Information it was alleged that the foreign exchange allocation in the amount of $8,177.75 every semester was obtained by Caparaz through the submission of falsified documents. Record likewise showed that Salustia Lasin and Natalia Caparaz who were i ndicted in the information were discharged and made state witnesses. After trial the lower court convicted petitioners herein of the charges concerning the dollar applicati on of Caparaz and Lasin. Both spouses appealed to the Court of Appeals which affirmed the judgment of the Court of First Instance and also denied their motion for reconsideration. Hence this petition. Before We take up the assigned errors, We note, as was brought up by defense counsels Quisumbing, Ordonez and Gatchalian in their well-written brief, the fact that-on January 21, 1962, while this case was pending in the Court of Appeals, the Central Bank issued Circular No. 133 which lifted and abolished the foreign exchange controls instituted by earlier ci rculars. This particular circular dispensed with the need for prior specific licensing from the Central Bank for the sale of foreign exchange for imports. Before Us now therefore are posed these questions: 1. Did the Honorable Court of Appeals err in not acquitting the petitioners herein? 2. Did the Honorable Court of Appeals err in not ruling that prosecution against petitioner spouses may no longer be had for falsification of documents required by the Central Bank Circular No. 20 as a consequence of the rep eal of said Circular by Circular No. 133? I A review of the proceedings and exhibits presented in the lower court reveals that there is truth in the findings of the trial court, affirmed by the Court of Appeals, that the spouses Lucas and Encarnacion Ramirez were guilty of the crime charged. Although their names never appeared in the allegedly falsified documents, this was so because they concocted, schemed and executed the plot to falsify the said documents submitted to the Central Bank very carefully and meticulously without involving their names, but this plot was betrayed by their active participation (other than signing their names) in the commission of the off ense at bar which was positively proved. During the trial the fact of illiteracy of the applicant-importers Salustia Lasin and Natalia Caparaz was elicited and established. Capitalizing on the illiteracy of Lasin and Caparaz who neither could read nor write except to sign their names but who were eager beavers to be among the importers, spouses Lucas and Encarnacion Ramirez had ready- made applications with manufactured figures and data signed by them (applicant importers). These applications had every appearance of genuineness and since the same appear to be duly certified to by Segundo Esguerra, an independent Certified Public Accountant, in compliance with a CB regulation, the applicant importers qualified as new importers and in fact obtained dolla r allocations. Petitioners herein would pass the buck to Segundo Esguerra the CPA whose signature appeared in all the statements filed in the CB. Thus petitioner Ramirez declared during the trial that Segundo Esguerra with another lawyer, Osmundo Miranda, now deceased, sub-leased a portion of the room at 308 Quisumbing Bldg. leased by her which Esguerra used as his office after the regular office hours (Esguerra was said to be working for H. R. Lopez, Inc. as Accountant) and that he used to stay there from 11:30 A.M. to 2:00 P.M., then from 5:00 P.M. to 7:00 P.M. daily (t.s.n. November 4,1960 pp. 37-41). She would also have us believe that the alleged falsified papers were found at the outer room which was then occupied by Esguerra and the late Atty.
Miranda-a fact which she failed to prove. When the raid occurred it was Lucas Ramirez who came to the scene, opened the main door and unlocked all the cabinets and drawers in Room 308. As found out by the Court of Appeals: ... Los agentes de la ley antes de verificar el registro del cuarto Num. 308 del edificio Quisumbing estuvieron en la residen cia de los esposos aqui acusados y Lucas Ramirez fue quien les acompano al referido cuarto, y segun las pruebas de la accusacion, Ramirez tenia las llavez de los armarios y mesas que estaban dentro del cuarto y fue quien abrio los cajones de dichas mesas donde se encontraron los duplicados y los documentos falsos. (Emphasis supplied) (Criminal Record, Decision of the court of Appeals, Third Div.) The testimony of Jose Aquino, CB agent (t.s.n, March 10, 1958 pp. 3-5) that he remembered that there were divisions in Room 308 with several tables but without Identifying who the occupants of the tables were did not in any way lend support to the contention of accused Encarnacion Ramirez that she subleased a portion of her room to Esguerra and deceased Miranda. No contract of sub-lease was presented, and even assuming arguendo that the same was sub-leased, no reason was offere d why Lucas Ramirez had the keys not only to the main door but all the cabinets and drawers as well. What is apparent is that Esguerra held office at Room 308 Quisumbing Bldg. not as sublessee but on agreement with Lucas Ramirez who was himself a CPA and an Auditor of H.R. Lopez Inc., a firm where Esguerra was also employed as an Accountant. In fact Esguerra admitted that he went to 308 Quisumbing Bldg. after office hours (t.s.n. March 20, 1959 pp. 12-13.) on instructions of Lucas Ramirez and si gned statements for a fee of P100.00 per certification (t.s.n. October 5, 1956, Criminal Record p. 352, 357). It surprises Us why Esguerra was not subjected to further investigations if he were equally guilty of the crime charged. Accused Encarnacion Ramirez too tried to wash her hands by testifying that she did not know Natalia Caparaz nor did she meet her before the hearing (t.s.n. p. 21 Nov. 4, 1960). On further examination, however, she admitted having known her as she (Caparas) was introduced to her (Ramirez) by a mutual friend, Apolonia Alcantara (t.s.n. p. 31 Nov. 4, 1960). Also during the raid, the NBI and CB agents found among the papers powers of attorney executed by Lasin and Caparaz in favor of Encarnacion Fajardo Ramirez, authorizing the latter to manage the disposal of the dollar allocations. Likewise it was shown during the trial that the spouses petitioners herein benefited from the dollar allocations obtained by Caparaz and Lasin and in fact retained the lion's share therefrom. Thus from the allocation obtained by Caparaz in the amount of $8,177.75, she (Caparas) was only given the amount of P400.00 as reimbursement of her expenses and P65.00 as her share of the dollar allocation (t.s.n. pp. 10-11 March 20, 1959). Similarly when Lasin's application was approved for $8,975.00 she was only given a share of P500.00 (t.s.n. May 15, 1959 pp. 33, 34). All the above facts positively affirm the guilt of spouses-petitioners herein. II Anent the second error, it is the contention of petitioners herein that with the advent of full decontrol envisaged in Circul ar No. 133 issued on January 21, 1962, the crime for which petitioners were indicted has already been extinguished. Pertinent provisions of Circular 133 are hereunder quoted for easy reference, viz: xxx xxx xxx 2. Only authorized agent banks may sell foreign exchange for imports. Such exchange should be sold at the prevailing market rate to any applicant, without requiring prior specific licensing f rom the Central Bank, subject to the following conditions: a. All imports must be covered by letter of credit except small transactions involving not more than $100.00; b. x x x xxx xxx xxx 4. The free market rate shall not be administratively fixed but shall be determined through transactions in the free market, xxx xxx xxx 8. All existing circulars, rules and regulations and conditions governing transactions in foreign exchange not inconsistent with the provisions on this Circular are deemed incorporated hereto and made integral parts hereof by reference. It is very clear that Circular 133 lifted the restrictions imposed by Circular 20 and subsequent circulars thereto. In short Circular 133 repealed Circular 20. This is so because Circular 20 and Circular 133 are diametrically opposed to each other. While Circular 20 restricted the sale of foreign exchange and subjected all transactions therein to specific licensing by the Central Bank, Circular 133 practically did away with prior licensing. As aptly elucidated in the case of People vs. Sandico 1, Jr. et al. ... The Solicitor General's opposition to the motion for dismissal is predicated primarily upon his contention that Circular 20 has not been repealed by Circular 133, and that far from being incompatible, the two actually complement each other. This contention is without merit. In the first place, while Circular 20 restricts sales of foreign exchange and subjects all transactions therein to specific licensing by the Central Bank, Circular 133 neither restricts sales of foreign exchange nor subjects transactions therein to licensing. As a matter of fact, Circular 133 provides that foreign exchange shall be sold at a free market rate to any applicant without requiring prior specific licensing from the Central Bank, and that the free market rate shall not be administratively fixed but shall be determined in the transactions in the free market. From the contradictory concepts of the two systems may be see n the incompatibility between the two circulars. Circular 133 was promulgated precisely to remedy the e vils brought about by the control system; it is therefore not ancillary to Circular 20. If life is to be given to the remedy of decontrol as a policy f or economic survival, Circular 20 must give away to the supervening Circular 133. The purpose of Circular 133 cannot be achieved by applying the provisions of Circular 20; the two cir culars cannot operate hand in hand. It may be true that Circular 133 contains no specific provision which is in direct conflict with Secs. 4-a and b of Circular 20, the particular sections under which the appellants were charged and convicted. But it is obvious nonetheless that the respective purposes of these two circulars are diametrically opposed to each other, because while Circular 20 restricts the sale of foreign exchange and subjects all transactions therein to specific licensing by the Central Bank, the purpose of Circular 133 is clearly to abolish such restri ctions and do away with licensing. It is beyond doubt, therefore, that the purpose of Circular 20 was abandoned by the promulgation of Circular 133, and Secs. 4-a and b thereof have lost all meaning and function. Also under paragraph 8 of Circular 133 ( supra) it is so provided that circulars consistent with the provisions of Circular 133 are deemed incorporated thereto. However since Circular 20 is inconsistent and runs counter to it then by necessary implication t he same is abrogated and repealed. And as Sutherland 2 an eminent authority on Statutory Construction says-"When a subsequent enactment covering a field of operation coterminous with a prior statute cannot by any r easonable construction be given effect while the prior law remains in operative existence because of irreconcilable conflict between the two acts, the latest legislative expression prevails and the prior law yields to the extent of the conflict." The decisive question to determine now is whether or not repeal of Circular 20 obliterated petitioners' crime. Petitioners heavily relied on the case of People vs. Quasha 3 where this Court opined: ... The majority of the court however, are also of the opinion that, even supposing that the act imputed to the dependant constituted falsification at the time it was perpetrated, still with the approval of the Parity Amendment to the Constitution in March, 1947, which placed Americans on the same footing as Filipino citizens with respect to the right to operate public utili ties in the Philippines, thus doing away with the prohibition in Section 8, Article XIV, of the Constitution in so far as American citizens are concerned, the said act has ceased to be an offense within the meaning of the law, so that defendant can no longer be held criminally liable therefor. ... On the other hand, the Court of Appeals in its decision said: Finalmente, los apelantes contienden que con la abolicion de la adjudicacion de dolares, los actos cometidos por los esposos en el supuesto de que fuesen estos culpables ya han dejado de ser punibles, citando para este efecto la causa de Pueblo vs.
Quasha, 49 O.G. 2826. Entendemos que la contencion carece de merito porque en la presente causa los esposos estan acusados de falsification de documentos official y commercial y no de una infraction de los reglamentos del B anco Central sobre la adjudicacion de dolares y la causa de Quasha, supra, no es aplicable al caso de autos donde en parte se sostuvo que debido a la enmienda de la Constitution concediendo a los americanos iguales privilegios que los filipinos en la Llamadad clausula de paridad, no era necesario expresar en l a escritura de incorporacion la nacionalidad de los incorporadores americanos en una corporacion de utilidad publica puesto que tenian los mismos derechos y privil egios que los filipinos en un a corporacion de tal indole. We believe that the ratiocination of the Court of Appeals is altogether hair-splitting. If We will recall, the crime of falsification stemmed from the violation of the legal requirements of the Central Bank, specifically Circulars 20 an d 44, where applicantimporters were obliged to disclose the truth on the figures and data appearing in the documents submitted but which they allegedly falsified to qualify them as new i mporters. These requirements incorporated in Circular 20 and subsequent circulars were issued during an emergency in an effort to curb the outward flow of foreign exhange. Eventually, a free market ensued and the emergency measures were lifted. Consequently, there is no more obligation now to submit to the Central Bank suc h documents in support of an application for foreign exchange. Although the acts imputed to the accused constituted, at the time they were committed, falsification of commercial documents penalized under Sec. 172, paragraph 1, of the Revised Penal Code, the promulgation of Central Bank Circular 133 abolishing the requirement of specific licensing under Central Bank Circular No. 20 wiped away the legal obligation of the applicants for foreign exchange to disclose the truth of the facts narrated in the documents supporting their application. As there is no more legal obligation of the applicant to disclose such truth, an untruthful statement therein no longer constitutes the cri me of falsification perpetrated by making false statements in a narration of facts (Francisco, Revised Penal Code, p. 194, 1963 ed.; U.S. vs. Lopez, 15 Phil. 515 and People vs. Quasha, 93 Phil. 333). It may be argued that the repeal of Central Bank Circular No. 20 by Central Bank Circular No. 133 did not extinguish the criminal liability for falsification of commercial documents because the Revised Penal Code where such offense is punishable was unaffected thereby and remains valid and subsisting. True that the pertinent provision of the Revised Penal Code on falsification was not repealed by Circular No. 133, but the stubborn fact remains that the repeal of Cir cular No. 20 which imposed the obligation to state the truth in the papers supporting the application for foreign exchange extinguished that obligation, leaving no more foundation on which the falsification of such papers would rest. The root cause of the falsification, which was Central Bank Circular No. 20, having been totally removed, the offense arising out of a disregard or violation of said circular has n o more leg to stand on. The greater weight of authority is inclined to the view that an appellate court, in reviewing a judgment on appeal, will dispose of a question according to the law prevailing at the time of such disposition, and not according to the law prevailing at the ti me of rendition of the appealed judgment. The court will, therefore, reverse a judgment which was correct at the time it was ori ginally rendered where, by statute, there has been an intermediate change in the law which renders such judgment erroneous at the time the case was finally disposed of on appeal (111 A.L.R. 1318; see cases cited therein). Thus, if pending the appeal from a judgment of the lower court the law is changed, or the statute under which it was decided has been repealed, the appellate court must dispose of the case under the law in force when its decision is rendered. The court must conform its decision to the law then existing and may, therefore, reverse a judgment which was correct when pronounced in the subordinate tribunal, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower c ourt has been withdrawn by an absolute repeal (Vance v. Rankin (1902) 194 I11. 625, 62 N.E. 807, 88 Am. St. Rep. 173; Wall v. Chesapeake & O.R. Co. (1919) 290 I11. 227, 125 N.E. 20). Likewise it was held that while as a general rule it is the province of an appellate court to inquire only into the question whether a judgment was erroneous when rendered, if subsequent to the judgment of the lower court and before the decision of the appellate court is handed down a law intervenes changing the applicable rule, the judgment of the lower court, although correct under the law prevailing at the time it was rendered must be set aside by the appellate court and a judgment in conformity with the new law must be entered (U.S. v. The Peggy (1801) 1 Cranch (U.S.) 103, 2L. Ed. 49). It may be argued that the function of the appellate court is not to consider the merits of a cause on the basis of supervening extraneous circumstances but merely to review the judgment of the lower court with a view to determining whether it was erroneous or correct when it was rendered. But because judgment is suspended by appeal, it is without finality; that to give it finality the appellate court must itself pronounce its judgment, and that in so doing it must be governed by the existing law. When the previous law under which alone validity could be given to the judgment has been repealed, the sole prop and foundation for support of the judgment has been removed, and of necessity it must be declared null and void (Yeaton v. United States (1809) 5 Cranch (U.S.) 281, 3 L. Ed. 101). In view of the failure of the Court en banc after its first deliberation to reach a decision on this case due to the absence of the required number of justices to promulgate a decision, and of the abstention of two justices from participating therein, the case was set for rehearing en banc in accordance with Sec. 3, Rule 125 of the Rules of Court. On September 4, 1975, the case was reheard en banc and subsequently the justices present were requested to cast their r espective votes on the final outcome of the case. On April 8, 1976, the Court for the second time, formally voted on the case, and the result of the voting among the eleven justices present was as follows: 1. For AQUITTAL of the accused appellants1) Esguerra 2) Mu?oz Palma 3) Concepcion 4) Martin, JJ. 2. For CONVICTION of the accused appellants1) Castro, C.J. 2) Teehankee 3) Barredo 4) Makasiar 5) Aquino, JJ. 3. For ABSTENTION1) Fernando 2) Antonio, JJ. It resulted that the majority of eight required by the constitution in ordinary cases heard en banc to decide a case has not for the second time been obtained. Pursuant to the provisions of Sec. 3, Rule 125 of the Rules of Court, if after the case is reheard and in the rehearing no decision is again reached, the judgment of conviction of the lower court shall be reversed and the defendant shall be acquitted. WHEREFORE, the accused appellants, Lucas Ramirez and Encarnacion Fajardo Ramirez, are hereby acquitted of the offense charge, with costs de oficio.
SO ORDERED. Munoz Palma and Martin, JJ, concur. Concepcion Jr., J., votes to acquit. Fernando and Antonio, JJ., took no part. Separate Opinions
CASTRO, C.J, dissenting: The burden of my dissent may be simply stated thus: the repeal of Circular 20 by Circular 133 did not obliterate the crime of falsification punished by Article 172 of th eRevised Penal Code which the herein petitioners were charged with and found guilty of in the court a quo. It is unmitigated non-sense to say that a mere circular issued by the Central Bank can operate to amend a statute passed by Congress; and since the herein petitioners were charged with the crime of falsification and not with a violation of Circular 20, no amount of sophistry can give validity to the conclusion that Circular 133 has operated to repeal Article 1 72. Advertence is made by Mr. Justice Esguerra in his opinion to People vs. Sandico, Jr., et al. (Court of Appeals Reports, Vol. 2, July 20, 1962, pages 488, 492, 493). I was the Associate Justice who penned the decision in that case. If my complete opinion therein is to be examined very closely, it will be readily seen that the portions thereof cited by Mr. Justice Esguerra are unassailable, because the accused were charged, not with an offense punished by the Revised Penal Code, but with a violation of Circular 20 in relation to Section 34 of Republic Act 265, or, more specifically, with having "transacted, negotiated or otherwise dealt in foreign exchange by purchasing, dealing in or transacting with persons or entities who are not authorized agents of the Centr al Bank of the Philippines, and by disposing, exporting and/or otherwise failing to sell said foreign exchange to any designated agent of the Central Bank within the requisite period." Reliance on People vs. Sandico as a basis for the acquittal of the petitioners in the case at bar is not only improper; it is likewise grossly misleading. TEEHANKEE, J., dissenting: I dissent from the decision reversing the judgment of conviction of petitioners-accused of the c rime of falsification of public and commercial documents under Article 172 of the Revised Penal Code because of the Court's failure to attain the necessary 8 out of 9 votes for affirmance of the conviction (with 5 votes for affirmance and 4 votes for reversal) pursuant to Rule 125, section 3 of the Rules of Court. As stated in the main opinion 1 the decisive question is whether or not repeal of 1949 Circular 20 subjecting all transactions in foreign exchange transactions to licensing the Central Bank (allegedly by 1962 Circular No. 133 which provided for sales of foreign exchange at the prevailing free market rate without requiring specific licensing from the Central Bank but subject to certain conditions such as letters of credit to cover all imports with special time deposits varying from 25%-to 150% ( depending upon the classification of the imported goods) "obliterated petitioners' crime" of falsification. Even assuming that Circular No. 133 repealed Circular No. 20 (which in my opinion it did not, since it merely liberalized at the time the sales of foreign exchange with the adoption of a free market rate), the adoption of Circular No. 133 by the Monetary Board could by no means obliterate the crime of falsification under which the petitioners were charged, found positively guilty beyond all doubt (as reaffirmed in the main opinion) 2 and convicted. Had the petitioners-accused simply violated the Circular by obtaining the dollar allocations without being entitled thereto but without falsification of documents, then they would have been criminally charged and convicted of willful violation of the circular under Section 34 of Republic Act No. 265 which imposes the penalty of a fine up to P20,000.00 and imprisonment up to five years. 3 And the alleged repeal of Circular No. 20 might arguably be cited now for erasing their criminal liability thereunder for willful violation. But petitioners without presenting themselves nor using their own names had fabricated documents and records to have their two illiterate dummies secure semestral dollar allocations as fake new importers in the amounts of $8,177.75 (for Caparaz) and $8.975.00 (for Lasin) per semester, which were actually for their use and benefit 4 and were therefore charged, tried and convicted for falsification of public and commercial documents under Article 172 of the Revised Penal Code 5 on the very strength of the testimonies of the two dummies who were utilized as state witnesses for the prosecution. Clearly,, the crime of falsification which remains a serious crime has not been obliterated by the alleged repeal of Circular No. 20, and petitioners' criminal liability has neither been obliterated nor extinguished. The main opinion in holding that "the root cause of the falsification, which was Central Bank Ci rcular No. 20, having been totally removed, the offense arising out of a disregard or violation of said circular has no more leg to stand on" 6 disregards that petitioners' motive in committing falsification (to get dollar allocations thru their dummies as fake new importers) does not erase or justify the crime of falsification of public documents with the removal of the motive (Circular No. 20) since in the falsification of public documents, whether by public officials or private persons, the Idea of gain or intent to prejudice a third person is secondary and the principal thing punished is the violation of the public faith and the destruction of the truth as therein solemnly declared. The removal (repeal) of the circular might leave a prosecution for violation thereof under Section 34 of the Central Bank Act without any leg to stand on, but petitioners stand charged with falsification. Since all the nine (of eleven) members of the Court who have participated in this case are unanimously agreed that petitioners' guilt of the crime of falsification of public and commercial documents has been proved beyond reasonable doubt, their conviction by the trial court as affirmed on appeal by the Court of Appeals must stand. Makasiar, J., concur. AQUINO, J., dissenting: I dissent. I do not agree with the opinion that the supposed repeal of Circular 20 by Circular 133 of the Central Bank obliterated the crime of falsification punished in article 172 of the Revised Penal Code which the petitioners had committed. They were not charged under Circular 20. Circular 133 did not repeal article 172. The facts of the instant case are different from those of People vs. Quasha, 93 Phil. 333. This Court is not bound by the opinion of the Court of Appeals in People vs. Sandico, 2 Court of Appeals Reports 488 cited in the majority opinion. The alleged repeal of Circular 20, as a supervening fact, may be a basis for executive clemency. That repeal did not extinguish the petitioners' cr iminal liability under articles 172. Barredo and Makasiar, JJ., concurs. Separate Opinions CASTRO, C.J, dissenting: The burden of my dissent may be simply stated thus: the repeal of Circular 20 by Circular 133 did not obliterate the crime of falsification punished by Article 172 of th eRevised Penal Code which the herein petitioners were charged with and found guilty of in the court a quo. It is unmitigated non-sense to say that a mere circular issued by the Central Bank can operate to amend a statute passed by Congress; and since the herein petitioners were charged with the crime of falsification and not with a violation of Circular 20, no amount of sophistry can give validity to the conclusion that Circular 133 has operated to repeal Article 172. Advertence is made by Mr. Justice Esguerra in his opinion to People vs. Sandico, Jr., et al. (Court of Appeals Reports, Vol. 2, July 20, 1962, pages 488, 492, 493). I was the Associate Justice who penned the decision in that case. If my complete opinion therein
is to be examined very closely, it will be readily seen that the portions thereof cited by Mr. Justice Esguerra are unassailable, because the accused were charged, not with an offense punished by the Revised Penal Code, but with a violation of Circular 20 in relation to Section 34 of Republic Act 265, or, more specifically, with having "transacted, negotiated or otherwise dealt in foreign exchange by purchasing, dealing in or transacting with persons or entities who are not authorized agents of the Centr al Bank of the Philippines, and by disposing, exporting and/or otherwise failing to sell said foreign exchange to any designated agent of the Central Bank within the requisite period." Reliance on People vs. Sandico as a basis for the acquittal of the petitioners in the case at bar is not only improper; it is likewise grossly misleading. TEEHANKEE, J., dissenting: I dissent from the decision reversing the judgment of conviction of petitioners-accused of the crime of falsification of public and commercial documents under Article 172 of the Revised Penal Code because of the Court's failure to attain the necessary 8 out of 9 votes for affirmance of the conviction (with 5 votes for affirmance and 4 votes for reversal) pursuant to Rule 125, section 3 of the Rules of Court. As stated in the main opinion 1 the decisive question is whether or not repeal of 1949 Circular 20 subjecting all transactions in foreign exchange transactions to licensing the Central Bank (allegedly by 1962 Circular No. 133 which provided for sales of foreign exchange at the prevailing free market rate without requiring specific licensing from the Central Bank but subject to certain conditions such as letters of credit to cover all imports with special time deposits varying from 25%-to 150% ( depending upon the classification of the imported goods) "obliterated petitioners' crime" of falsification. Even assuming that Circular No. 133 repealed Circular No. 20 (which in my opinion it did not, since it merely liberalized at the time the sales of foreign exchange with the adoption of a free market rate), the adoption of Circular No. 133 by the Monetary Board could by no means obliterate the crime of falsification under which the petitioners were charged, found positively guilty beyond all doubt (as reaffirmed i n the main opinion) 2 and convicted. Had the petitioners-accused simply violated the Circular by obtaining the dollar allocations without being entitled thereto but without falsification of documents, then they would have been criminally charged and convicted of willful violation of the circular under Section 34 of Republic Act No. 265 which imposes the penalty of a fine up to P20,000.00 and imprisonment up to five years. 3 And the alleged repeal of Circular No. 20 might arguably be cited now for erasing their criminal liability thereunder for willful violation. But petitioners without presenting themselves nor using their own names had fabricated documents and records to have their two illiterate dummies secure semestral dollar allocations as fake new importers in the amounts of $8,177.75 (for Caparaz) and $8.975.00 (for Lasin) per semester, which were actually for their use and benefit 4 and were therefore charged, tried and convicted for falsification of public and commercial documents under Article 172 of the Revised Penal Code 5 on the very strength of the testimonies of the two dummies who were utilized as state witnesses for the prosecution. Clearly, the crime of f alsification which remains a serious crime has not been obliterated by the alleged repeal of Circular No. 20, and petitioners' criminal liability has neither been obliterated nor extinguished. The main opinion in holding that "the root cause of the falsification, which was Central Bank Circular No. 20, having been totally rem oved, the offense arising out of a disregard or violation of said circular has no more leg to stand on" 6 disregards that petitioners' motive in committing falsification (to get dollar allocations thru their dummies as fake new importers) does not erase or justify th e crime of falsification of public documents with the removal of the motive (Circular No. 20) since in the falsification of public documents, whether by public officials or private persons, the Idea of gain or intent to prejudice a third person is secondary and the p rincipal thing punished is the violation of the public faith and the destruction of the truth as therein solemnly declared. The removal (repeal) of the circular might leave a prosecution for violation thereof under Section 34 of the Central Bank Act without any leg to stand on, but petitioners stand charged with falsification. Since all the nine (of eleven) members of the Court who have participated in this case are unanimously agreed that petitioners' guilt of the crime of falsification of public and commerci al documents has been proved beyond reasonable doubt, their conviction by the trial court as affirmed on appeal by the Court of Appeals must stand. Makasiar, J., concur. AQUINO, J., dissenting: I dissent. I do not agree with the opinion that the supposed repeal of Circular 20 by Circular 133 of the Central Bank obliterated the crime of falsification punished in article 172 of the Revised Penal Code which the petitioners had committed. They were not charged under Circular 20. Circular 133 did not repeal article 172. The facts of the instant case are different from those of People vs. Quasha ,93 Phil. 333. This Court is not bound by the opinion of the Court of Appeals in People vs. Sandico, 2 Court of Appeals Reports 488 cited in the majority opinion. The alleged repeal of Circular 20, as a supervening fact, may be a basis for executive clemency. That repeal did not extinguish the petitioners' criminal liability under articles 172. Barredo and Makasiar, JJ., concurs. Footnotes 1 00964-C.R. July 20,1962 Court of Appeals Reports vol. 2 p. 488, 493. 2 Sutherland, Statutes and Statutory Construction 463, 464. 3 L-6055 June 12, 1953, 93 Phil. 333, 340: Teehankee, J., dissenting: 1 At page 240. 2 At page 239 3 Section 34 of the Central Bank Act (Rep. Act 265) provides: "SEC 34. Proceedings upon violation of l aws and regulations.- Whenever ay person or e ntity wilfully violates this Act or any order, instruction, rule or regulation legally issued by the Monetary Board, the person or persons responsible for such violation shall be punished by a fine of not more than twenty thousand pesos and by imprisonment of not more than five years." 4 Main opinion, at pp. 238-239. 5 Which imposes the penalty of a fine up to P5,000.00 and imprisonment of prision correccional in its medium and maximum periods. 6 At page 242; Emphasis supplied. G.R. No. L-23800 December 21, 1965 POLICARPIO ALMEDA, plaintiff-appellant, vs. JULIAN FLORENTINO, defendant-appellee. Policarpo Almeda in his own behalf. Mariano V. Ampil, Jr. for defendant-appellee.
REYES, J.B.L., J.: Appeal from a decision of the Court of First Instance of Pasay City in Sp. Civil Case No. 2462-P dismissing theQuo Warranto proceedings instituted by petitioner appellant Policarpo Almeda against respondent appellee Julian Florentino. Both parties claim title to the position of Secretary to the Municipal Board of Pasay City. The background of the litigation is the following: Republic Act No. 183, the charter of Pasay (formerly Rizal) City (enacted June 21, 1947), provides i n its section 12 that: SEC. 12. Constitution and organization of the Municipal Board — Compensation of members thereof. — The Municipal Board shall be the legislative body of the city and shall be composed of one Mayor, who shall be its presiding officer, the Vice-Mayor, who shall be ex-officio councilor when not acting as Mayor, and seven councilors, who shall be elected at large by popular vote during every elec tion for provincial and municipal officials in conformity with the provisions of the Election Code. In case of sickness, absence, suspension or temporary disability of any member of the Board, or if necessary to maintain a quorum, the President of the Philippines may appoint a temporary substitute who shall possess all the rights and perform all the duties of a member of the Board until the return to duty of the regular incumbent. If any member of the Municipal Board should be a candidate for office i n any election, he shall be disqualified to act with the Board in the discharge of the duties conferred upon it relative to election matters, and in such case the other
members of the Board shall discharge said duties without his assistance, or they may choose some disinterested elector of the city to act with the Board in such matters in his stead. The members of the Municipal Board shall receive ten pesos for each day of attendance of the session of the Board. Section 14, paragraph 1, of Republic Act 183, in turn, provides: SEC. 14. Appointment, salary and duties of Secretary of Board. — The Board hall have a secretary who shall be appointed by it to serve during the term of office of the members thereof. The compensation of the secretary shall be fixed by ordinance approved by the Secretary of the Interior, at not exceeding three thousand six hundred pesos per annum. A vacancy in the office of the secretary shall be filled temporarily for the unexpired term in like manner. On June 18, 1960, Republic Act No. 2709 amended section 12 of Republic Act 183 (Pasay City Charter) to make it read as follows: SEC. 12. Constitution and organization of the Municipal Board — Compensation of members thereof. — The Municipal Board shall be the legislative body of the city and shall be composed of the Vice-Mayor, who shall be its presiding officer, and ten councilors who shall be elected at large by popular vote during every election for provincial and municipal officials in conformity with the provisions of the Election Code. In case of sickness, absence, suspension or temporary disability of any member of the Board or if necessary to maintain a quorum, the President of the Philippines may appoint a temporary substitute who shall possess all the rights and perform all the duties of a member of the Board until the return to duty of the regular incumbent. The Vice-Mayor shall appoint all the employees of the Board who may be suspended or removed in accordance with law, and shall approve the payroll of the said employees. "If any member of the Municipal Board should be a candidate for office in any election, he shall be disqualified to act with the Board in the discharge of the duties conferred upon it relative to election matters, and in such case the other members of the Board shall discharge said duties without his assistance, or they may choose some disinterested elector or the city to act with the Board in such matters in his stead. The members of the Municipal Board shall receive a compensation for four thousand eight hundred pesos each per annum." On the strength of paragraph 2 of section 12 of the Pasay City Charter, as amended, the Vice -Mayor of Pasay City appointed appellant Almeda, as secretary of the Municipal Board of said City, on January 1, 1964. The very next day, the Board refused to recognize appellant as its secretary, and in turn appointed respondent-appellee Julian Florentino to the position, purportedly under section 14 of the City Charter. Hence, the quo warrantoproceeding, that raised in the trial court, and here, one lone issue: which law applies on the matter of the appointment of the Secretary of the Municipal Board of Pasay City, the amendatory Republic Act No. 2709 or the original charter, Republic Act 183? Almeda's contention is that the amendatory act vesting appointment of "all the employees of the (Municipal) Board" in the ViceMayor, being the later act, should apply to the Board Secretary; but his claim was rejected by the court below, on the ground that the general appointing power of the Vice-Mayor must be construed as not including that of the Board secretary, which i s provided for in a separate section. We find that the petition for quo warranto was correctly dismissed. There is nothing in Rep. Act 2709 that indicates any intention on the part of the Legislature to repeal, alter, or modify in any way the provisions of section 14 of the Pasay City charter (Rep. Act No. 183) regarding the appointment of its secretary by the Municip al Board. The power of appointment of Board employees is conferred upon the vice-mayor by section 1 of Republic Act 2709; but the preamble of said section expressly recites that it is an amendment to section 12 of the Pasay charter, and no other. Because r epeals by implication are not favored, unless it is manifest that the legislature so intended (U.S. vs. Palacio, 33 Phil. 216; Lichauco vs. Apostol, 44 Phil. 138); and since courts are duty bound to adopt a construction that will give effect to e very part of a statute, if at all possible, following the maxim "ut magis valeat quam pereat" ("that construction [is to be] sought which gives effect to the whole of the statute-its every word", Tamayo vs. Gsell, 35 Phil. 953, 980), there is no alternative but to interpret the charter as the lower court has done, i.e., limiting the power of the Vice-Mayor under section 12 (as amended) to the appointment of all the employees of the Board other than the Secretary, who is to be appointed by the Board itself, as specifically prescribed by section 14 of the Pasay city charter. WHEREFORE, the decision appealed from is hereby affirmed, with costs against the appellant. Bengzon, C.J., Bautista Angelo, Concepcion, Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur. G.R. No. L-29827 March 31, 1973 ANTONIO J. VILLEGAS, in his capacity as City Mayor of Manila, Petitioner , vs. JUAN PONCE ENRILE, JOSE L. GAMBOA, ABELARDO SUBIDO, HUGODINO COSIN LIM, and HERMOGENES DIEGO, in their respective capacities as Secretary of Justice, Acting City Fiscal of Manila, Commissioner of Civil Service, City Auditor of Manila and Acting City Treasurer of Manila, and PATROCINIA C. GASPAR, BRIGIDA B. VERGARA, CONRADO AZARRAGA, EMILIA QUERI, MANUEL L. ASIS and GLORIA ALCAIDE, wh o were appointed by Respondent Secretary of Justice to the City Fiscal's Office after January 1, 1968 and others similarly situated, Respondents. Gregorio A. Ejercito, Arturo T. de Guia and Alejo T. Boquiren, Jr. for petitioner. Assistant City Fiscal Leonardo L. Arguelles for respondents Jose L. Gamboa, et a l. Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Pacifico P. de Castro and Solicitor Bernardo P. Pardo for respondents Juan Ponce Enrile, et al.
FERNANDO, J.:
In this certiorari and prohibition proceeding, petitioner Antonio J. Villegas, the then Mayor of the City of Manila, alert to the possibilities in the broader scope of authority granted him by the Decentralization Act, 1would question the power of the Secretary of Justice 2to appoint subordinates in the Office of the City Fiscal 3in accordance with the Charter of the City of Manila. 4It is the contention of petitioner that if the purpose Section 4 5of the Decentralization Act be given effect, then such competence is no longer lodged in respondent Secretary Justice but in him as Mayor of the City of Manila. Unfortunately for him, the view thus advanced has be rejected in a recent decision,Villegas v. Subido, 6the principle of which certainly is controlling. The petition must fail.chanroblesvirtualawlibrarychanrobles virtual law library The relevant facts as noted in the petition follow: "Pursuant to the provisions of Section 4 of the Decentralization Act quoted above, [Mayor Villegas] by letter dated January 10, 1968, requested respondent City Fiscal to furnish him plantilla of all appointive employees of the City Fiscal's Office along with their individual service records. Petitioner made this request so that he can properly exercise the power of appointment over such subordinate personnel of said office are paid entirely from city funds. ... Respondent City Fiscal under letter dated January 31, 1968, ... informed Petition Mayor that he c ould not accommodate Petitioner's request. According to Respondent City Fiscal, [the cited] provisions the Decentralization Act ... do not vest in the Petitioner the power of appointing personnel in his office even those paid entirely out of city funds." 7Respondent City Fiscal, so it was alleged, predicated his denial on an opinion of respondent Secretary of Justice. 8Then came this paragraph: "Respondent
Justice Secretary extended appointments to several persons positions in the City Fiscal's Office, Manila, after January 1, 1968 contrary to and in violation of the provisions of the Decentralization Act." 9It was next asserted that respondent Civil Service Commissioner approved such appointments. 10After which, mention was made of this fact: "The service s of the above-named appointees, and others not named, were paid and are being paid on vouchers and payrolls approved by Respondent Acting City Fiscal, certified as to the availability of funds by Respondent City Treasurer and allowed in audit by Respondent City Auditor. 11chanrobles virtual law library It is not surprising that in the answer of respondent Secretary of Justice as well as that of respondent City Fiscal after an admission of the relevant facts, the main special defense relied upon was the continuing effectivity of the provision of the Charter of the City of Manila, which negates such an assumption of authority on the part of petitioner. For them, the cited provision in the Decentralization Act does not change matters. In the language of the answer of respondent City Fiscal as well as respondent employees: "Answering respondents need only reiterate the opinion rendered by the Secretary of Justice dated January 22, 1968 ... which holds the view that the power to appoint subordinate personnel of the Office of the City Fiscal lies with the Secretary of Justice and not with the City Mayor. Contemporaneous construction placed upon the statute by the executive officers charged with its execution deserves great weight in the courts. ... It must be pointed out that in exempting city fiscals from the en acting clause of Section 4 of the Decentralization Act which now empowers the Mayor in appointing certain heads, assistant heads of local offices and subordinates, the legislature chose to maintain the status quo and retain the power of appointments of fiscals and subordinate employees in the President and the Secretary of Justice, respectively. This must be so if the power of supervision and control of the Secretary of Justice over the Office of the City Fiscal is to be maintained ... . For how else can the Secretary of Justice exercise supervision and control over the subordinate employees of the Office of the City Fiscal if the appointment of said subordinates were to be vested in or transferred to the mayor? Moreover, it could not have been the intention of Congress to dislocate the administrative machinery of government which has been placed on a unifunctional basis ... wherein the department secretary is made the supervisory and policy-making official for bureaus and offices composing the different departments ... ." 12chanrobles virtual law library In the perspective thus supplied, even without the controlling authority of Villegas v. Subido, it would clearly appear that the position taken by petitioner is not legally sound. With the authoritative character of such a decision, however, no doubt need be entertained as to its lack of merit. As noted at the outset, the petition must be dismissed.chanroblesvirtualawlibrarychanrobles virtual law library 1. Before the enactment in 1967 of the Decentralization Act, there is no question in accordance with Sangalang v. Vergara 13that under the Charter of the City of Manila, the appointment of personnel in the Office of the City Fiscal is vested in the Secretary of Justice. As was therein stated in the opinion of Justice Barrera: "This being the case, the appointments of clerks in the Office of the City Fiscal come under Section 79(D) of the Revised Administrative Code which provides: ' Power to appoint and remove. - The Department Head, upon recommendation of the chief of the Bureau of office concerned, shall appoint all subordinate officers and employees whose appointment is not expressly vested by law in the President of the Philippines and may remove or punish them except as especially provided otherwise, in accordance with the Civil Service Law, ... .' " 14It is the contention of the petitioner as City Mayor that the above decision is no longer good law in view of Section 4 of the Decentralization Act. He ignored that such provision merely specifies that the City Assessor, City Agriculturist, City Chief of Police and the City Chief of Fire Department and other heads of offices entirely paid out of city funds and their respective assistants or deputies shall be appointed by the City Mayor. Petitioner ignores that a proviso thereof explicitly exc ludes the City Fiscal. 15The very provision of the law cited therefor hardly lends support for the pretension of petitioner. Even if a more expansive construction is warranted, petitioner has not made out a case unless the dictum of i mplied repeal be considered as calling for application. Precisely, however, Villegas v. Subido 16speaks to the contrary. It rejects such a view. As was therein set forth: "Much less is reversal of the lower court decision justified on the plea that the aforesaid provision in the Decentralization Act had the effect of repealing what is specifically ordained in the city charter. It has been the constant holding of this Court that re peals by implication are not favored and will not be so declared unless it be manifest that the legislature so intended. Such a doctrine goes as far back as United States v. Reyes, a 1908 decision. It is necessary then before such a repeal is deemed to exist, that it be shown that the statutes or statutory provisions deal with the same subject matter and that the l atter be inconsistent with the former. There must be a showing of repugnancy clear and convincing in character. The language used in the latter statute must be such as to render it irreconcilable with what had been formerly enacted. An inconsist ency that falls short of that standard does not suffice. What is needed is a manifest indication of the legislative purpose to repeal." 17As we decided then, so we do now.chanroblesvirtualawlibrarychanrobles virtual law library 2. Petitioner perhaps would have been more hesitant to institute a proceeding of this nature and assert for himself a power for which no clear statutory authority exists had the decision in Estrella v. Orendain, 18which was promulgated only on February 27, 1971, already seen the light of day. It would be unfair then to expect him to have anticipated such a view when he presented his petition before this Court on November 22, 1968. Nonetheless, the Estrella decision, the opinion being penned by Justice Barredo, makes manifest why the Office of the City Fiscal should be under the control of respondent Secretary of Justice. As a matter of fact, the ultimate basis of such competence is the constitutional power of the President vesting in him the control of all executive departments, bureaus or offices, as well as hi s duty to take care that the laws be faithfully executed. So Justice Barredo's opinion makes clear: "Importantly, it must be borne in mind that while it true that a fiscal i n exercising his disc retion as to whether not to prosecute somebody for an offense performs a quasi-judicial act, the functions that he discharges as an officer of the government are basically executive. He belongs to executive department rather than to the judiciary. If indeed, some instances, his salary is paid by the corresponding local governments, he does not thereby become a part thereof, for i s always within the ambit of the national authority when comes to the supervision and control of his office, powers a functions. As a matter of fact, Section 83 of the Revised Administrative Code places him under the "general supervise and control" of the Department of Justice together with other prosecuting officers and under Section 74 of the same Code, the Secretary of Justic e as "Department Secretary shall assume the burden and responsibility of all activities of the Government under his control and supervision." ... Consequently, the constitutional power of the President of control of all execute departments, bureaus or offices (Sec. 10, Art. VII, Constitution of the Philippines) should be considered as embracing his office. Withal, the prosecution of crimes is part of the President's duty to "take care that the laws be faithfully executed" ... and the Sec retary of Justice is, by the nature of his office, the principal alter ego of the President in the performance of such duty, ... whereas the working arms the Secretary i n this respect are the fiscals and other prosecuting officers. On the other hand, Section 79 (c) of the Revised Administrative Code defines the extent of department secretary's powers in the premises this wise: 'Section 76(c). Power of direction and supervision . The Department Head shall have direct control, direction, supervision over all bureaus and offices under his jurisdiction and may, any provision of existing law to the contrary notwithstanding, repeal or modify the decisions of the chief of said bureaus or offices when advisable in the public interest.' " 19Further there is this equally relevant portion: "Needless to say, any legislative attempt to impair or detract from the Secretary's authority, as herein-above defined, city and provincial fiscals by confining the same to "general administrative supervision" or otherwise by means of an description of similar i mport, cannot stand as it would vulnerable to the attack of invalidity, since such limitation would of necessity have the effect of downgrading the Presidents constitutional prerogative of control, exercised thru the Secretary of Justice as already defined and delineated in e mphatic terms by this Court in the precedent cases above cited. Indeed, why should any f iscal have the same degree of independence from the Executive
as the judges who belong to another department of the government?" 20What other conclusion then can possibly emerge in the light of the foregoing except that what is sought by petitioner is devoid of support in law.chanroblesvirtualawlibrarycha law.chanroblesvirtualawlibrarychanrobles nrobles virtual law library li brary WHEREFORE, this petition for certiorari and prohibition is dismissed. Without pronouncement as to costs. Concepcion, C.J., Makalintal, Zaldivar, Castro, Barredo, Antonio and Esguerra, JJ., concur.chanroblesvirtualawlibrarychanrobles concur.chanroblesvirtualawlibrarychanrobles virtual law library Teehankee and Makasiar, JJ., took no part.
G.R. No. L-61293 February 15, 1990 DOMINGO B. MADDUMBA and ANITA C. MADDUMBA, petitioners, vs. GOVERNMENT SERVICE INSURANCE SYSTEM, Represented by its Chairman, Board of Trustees, HONORABLE LEONILO OCAMPO, respondent. Vicente P. Leus for petitioners. The Government Corporate Counsel for GSIS.
REGALADO, J.: This petition for mandamus seeks to compel respondent Government Service Insurance System (GSIS) to accept Land Bank bonds at their face value as i nstallments payments payments for a pre -existing obligation. The records disclose that on December 10, 1980, respondent GSIS conducted a public bidding of several foreclosed properties. Included in the properties offered to the public was a house and lot situated at 3377 New Panaderos Street, Sta. Ana, Manila, covered by Transfer Certificate of Title No. 4749 of the Register of Dee ds of Manila. Petitioner Domingo B. Maddumba participated participated in the public bidding and submitted his sealed bid in the amount of P98,000.00 in Philippine currency. The bid was subject to the c ondition that there should be a down payment of 35% of the amount thereof, the 10% constituting the proposal bond with the remaining 25% to be paid after the receipt of the notice of award or acceptance of the bid. Accordingly, petitioner enclosed with his sealed bid a manager's check in the amount of P9,500.00 and cash in the amount of P300.00 to complete the P9,800.00 proposal proposal bond. Upon the receipt of the notice of award, petitioner offered to pay the additional 25% in Land Bank bonds at their face value. These bonds were issued to petitioner as payment for his riceland consisting of twenty-six hectares located in Cordon, Isabela acquired by the Government from him under Presidential Decree No. 27. However, the GSIS rejected the offer, hence it was withdrawn by petitioner. Petitioner then offered to pay in cash t he remaining 25% down payment "and all future installments." 1 Thereafter, on November 16, 1981, petitioner paid in cash the balance of the required down payment. A "Deed of Conditional Sale" was executed by the parties on November 19, 1981, where the petitioner as vendee agreed to pay the vendor GSIS "the balance of the purchase price of SIXTY THREE THOUSAND SEVEN HUNDRED FIVE & 50/100 (P63,705.50) PESOS, Philippine currency, in SIXTY (60) monthly installments of ONE THOUSAND FOUR HUNDRED SIXTEEN & 6 9/100 (P1,416.69) PESOS, PESOS, Philippine currency, at twelve (12%) percent interest per annum, compounded monthly, beginning December 1, 1981." 2 The first installment in the amount of P1,416.00 was paid by petitioner on December 3, 1981. When the second monthly installment became due, petitioner sent a letter dated January 5, 1982, to the GSIS Board of Trustees requesting that he be allowed to pay the monthly amortizations with his Land Bank bonds commencing in January, 1982 until the exhaustion of the said bonds. 3 Petitioner invoked the provisions of Secton 85 of Republic Act No. 3844, as amended by Presidential Decree No. 251. The GSIS Board of Trustees, in its Resolution No. 91 adopted on January 22, 1982, denied petitioner's offer. The board "resolved to reiterate the policy that Land Bank bonds shall be accepted as payment only at a discounted rate to yield the System 18% at maturity. 4 In a letter dated February 12, 1982, 1 982, petitioner asked the Board of Trustees to reconsider r econsider Resolution No. 91. 5Petitioner reiterated his reliance on Section 85 of Republic Act No. 3844, as amended, and further supported his position with the contention that the policy of the GSIS contravenes the ruling in the case of Gonzales, et al. vs. The Government Insurance System, etc., et al. 6 Likng in the case of ewise, petitioner submitted an opinion of the Ministry of Agrarian Reform, dated February 12, 1982, wherein it was stated,a inter alia, that "if the GSIS accepts the Land Bank bonds as payment thereof, it must accept the same at par or face value. To accept said bonds at a discounted di scounted rate would lessen the credibility of the bonds as instruments of indebtedness." 7 In a letter dated May 31, 3 1, 1982, petitioner was advised by the Manager, Acquired Assets Department, Department, GSIS that Resolution N o. 415 was adopted on May 18, 1982 by the GSIS Board of Trustees denying the request of petitioner. Hence, on August 5, 1982, the instant original action for mandamus was filed by petitioner. The issue posed by this petition is whether or not under the provisions pro visions of Section 85 of Republic Act No. 3844, as amended by Presidential Decree No. 251 effective July 21, 1973, the GSIS may be compelled to accept Land Bank bonds at their face value in payment for a residential house and lot purchased by the bondholder from the GSIS. The aforesaid provision of law provides: Sec. 85. Use of Bonds. — The The bonds issued by the Bank may be used by the holder thereof and shall be accepted for any of the following: xxx xxx xxx 2. Payment for the purchase of shares of stock or assets of government-owned or controlled corporations. Upon offer by the bondholders, the corporation owned or controlled by the Government shall, through its Board of Directors, negotiate with such bondholder with respect to the price and other terms and c onditions of the sale. In case there are various bondholders making the offer, the one willing to purchase under the terms and conditions most favorable to the corporation shall be preferred. If no price is acceptable to the corporation, the same shall be determined by the Committee of Appraisers composed of three members, one to be appointed by the corporation, another by the bondholder making the highest or only offer, and the third by the members so chosen. The expense of appraisal shall be borne equally by the corporation and the successful purchaser. Should the Government offer for sale to the public any or all the shares of stock or the assets of any of the Government-owned or controlled corporations, the bidder bidder who offers to pay in bonds of the Land Bank shall be preferred, provided that the various bids be equal in every respect in the medium of payment. xxx xxx xxx It is not disputed that under the above quoted provisions, a government-owned or c ontrolled corporation, like the GSIS, is compelled to accept Land Bank bonds as payment for the purchase of i ts assets. As a matter of fact, the bidder who offers to pay in bonds of the Land Bank is i s entitled to preference. What respondent GSIS is resisting, however, is its being compelled to to accept said bonds at their face value. Respondent, in support of its stance that it can discount the bonds, avers that "(a) PD 251 has amended Section 85 of RA 3844 by deleting and eliminating the original provision that Land Bank bonds shall be accepted 'in the amount of their face value'; and (b) to accept the said bonds at their face value will impair the actuarial solvency of the
GSIS and thoroughly prejudice its capacity to pay death, retirement, insurance, dividends and other benefits and claims to it s more than a million members, the majority of whom are low salaried government employees and workers." 8 We cannot agree with respondent. Respondent's arguments arguments disregard the fact that the provisions of Section 85 are primarily designed to cushion the impact of dispossession. Not only would there be inconvenience resulting from dispossession itself, but also from the modes of payment in financing the acquisition of farm lots. Acceptance of Land Bank bonds, instead of money, undoubtedly involves a certain degree of sacrifice for the landowner. This, of course, is in addition to the fact that, in case of expropriation of land covered by land reform, the landowner will seldom get the c ompensation he desires. Thus, discounting the Land Banks bonds, and thereby reducing their effective value, entails and imposes an additional burden on his part. It is, i n fact, in consideration of this sacrifice that we extended the rule on liberality in the interpretation of the provisions of Republic Act No. 3844, then known as the Agricultural Land Reform Code, in favor not only of the actual tillers but the landowners as well. Ita semper fiat relatio r elatio ut valeat dispositio. The interpretation must always be such that the disposition may prevail. The nature of a Land Bank bond itself i tself fortifies our view that the respondent may be compelled to accept those bonds at thei r face value. As explained in an earlier case: True, the statute does not explicitly provide that Land Bank bonds shall be accepted at their face value. There can be no question, however, that such is the intendment of the law particularly in the absence of any provision expressly permitting discounting, as differentiated from Republic Act No. 304, or the Backpay Law, as amended by Republic Acts Nos. 800 and 897, 8 97, which expressly allows it. Land Bank bonds are certificates of indebtedness, approved by the Monetary Board of the Central Bank, fully tax-exempt both as to principal and income, and bear interest at the rate of 6% per annum redeemable at the option of the Land Bank at or before maturity, which in no case shall exceed 25 years. They are fully negotiable and unconditionally guaranteed guaranteed by the Government of the Republic of the Philippines. These bonds are deemed contracts and the obligations resulting therefrom fall within the purview of the nonimpairment clause of the Constitution, and any impairment thereof may take any encroachment in any respect upon the obligation and cannot be permitted. Thus, the value of these bonds cannot be diminished by any direct or indirect act, particularly, since said bonds are fully guaranteed by the Government of the Philippines. They are issued not i n the open market nor for the primary purpose of raising funds or pooling financial resources but in the captive market of landowners l andowners and to facilitate the speedy transfer of lands to the tenant-farmers in support of the land reform program of the Government. They are not ordinary commercial paper in that sense subject to discounting (Emphasis supplied). 9 We are aware that the above cited ci ted cases primarily involved Section 80 of the law as applied to cases where government financial institutions were compelled to accept Land Bank bonds at their face value for the discharge of existing encumbrances e ncumbrances on parcels of land given as security even if not an the lands covered by the mortgage were acquired by the Land Bank under Presidential Decree No. 27. Evidently, however, the variance in the factual setting would not change the very nature of said bonds by reason of which payment of pre-existing obligations to government financial institutions at their face or par value is justified and authorized. authorized. It would be hermeneutically hermeneutically unjustified unjustified to adopt adopt a tenuous theory which would would subject the parity of Land Bank bonds to qualifications and distinctions when the law itself does not so provide. The deed of conditional sale which was executed by the parties herein is i s subject to the obligation of and guaranteed by the Government under said bonds. Their agreement for the payment of installments in Philippine currency cannot in any way be construed as an alteration, nor should it detract from the e ssence and compulsion, of said obligation While, in one instance, petitioner offered to pay his future installments in c ash, that offer was obviously not voluntarily made but was exacted f rom him because of the refusal of respondent to accept the Land Bank bonds. That incident should not prevent petitioner from making, and allow respondent to refuse, an alternative mode of payment authorized by law and under the conditions laid down by this Court. Respondent cannot rely on the deletion by Presidential Decree No. 2 51 of the provision in Section 85 that the bonds shall be accepted in the amount of their face value, and wrest therefrom an interpretation in support of its thesis. Implied rep eals are frowned upon in this jurisdiction. They are not favored in law and will will not be so declared unless the intent of the legislatu re is manifest. In the present case, no such intention to effect changes in the law exists nor is it even e ven apparent. On the contrary, it can be said that when amendments were made to Section 85, the legislators were fully aware of the nature of Land Bank bonds, which would necessarily be concordant with the analysis and explanation subsequently made by the Court in the cases hereinbefore cited. If the legislature had really been minded to make changes in the policy on the acceptance value of said bonds, they could have expressly so provided with facility and ease. Thus, although such amendment amendment by deletion was effected e ffected in 1973 and the cases which clarified this point were decided in 1986 and 1987 on factual situations subsequent subsequent to 1973, this argument now posited by respondent based on such amendment was not taken into account by the Court in laying down its aforequoted doctrinal rulings. Neither can the respondent complain that the acceptance of said bonds at their face value will impair its actuarial solvency. We are constrained to quote from Gonzales again, that "(w)hatever "(w)hatever unfavorable results the acceptance may have on i ts finances, the effects must be deemed to have been intended by Presidential Decree No. 251, particularly, when it provided f or the payment in bonds to government lending institutions their 'existing charters to the contrary notwithstanding.' If iniquitous to said institutions, it remains now with the legislative branch to make the necessary revisions if desired. The traditional rol e assigned to the Judiciary is to implement and not to thwart fundamental fundamental policy goals." It is apropos to recall, all this juncture, our reminder in the aforecited case of Philippine National Bank vs. Amores, et al., which applies with equal force to herein respondent and the present case: Suffice it to mention that the petitioner is a government lending institution and as such, it has the obligation to support unequivocably government programs programs already on stream and not to introduce its own interpretative i nterpretative policies which may thwart such programs or modify them to nothingness. This is specially compelling with regard to land reform, the great venture of the government. The preamble of PD 251 eloquently articulates government intent to implement the state policy of 'diverting landlord capital in agriculture to industrial development' by 'mobilization and harnessing properly all available government resources for the realization of the desired agrarian reform program.' For agrarian reform cannot be fully realized without the intervention of the governmentparticularly governmentparticularly in the payment of just compensation. Surely, the tenant by himself does not have and cannot afford the wherewithal to defray the cost of the land tranferred to him. It is only with the full support and active assistance of the government principally through its financial institutions that payment of just compensation to the landowner may be realized. ... (Emphasis supplied). WHEREFORE, the writ of mandamus prayed for is hereby GRANTED. Respondent Government Service Insurance System is ordered to accept the bonds issued by the Land Bank of the Philippines at their par or face value. SO ORDERED. Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento, JJ., concur
G.R. No. 103982 December 11, 1992 ANTONIO A. MECANO, petitioner, vs. COMMISSION ON AUDIT, respondent.
CAMPOS, JR., J.: Antonio A. Mecano, through a petition for certiorari, seeks to nullify the decision of the Commission on Audit (COA, for brevity) embodied in its 7th Indorsement, dated January 16, 1992, denying his claim for reimbursement under Section 699 of the Revised Administrative Code (RAC), as amended, in the total amount of P40,831.00. Petitioner is a Director II of the National Bureau of Investigation (NBI). He was hospitalized for cholecystitis from March 26, 1990 to April 7, 1990, on account of which he incurred medical and hospitalization expenses, the total amount of which he is claiming from the COA. On May 11, 1990, in a memorandum to the NBI Director, Alfredo S. Lim (Director Lim, for brevity), he requested reimbursement for his expenses on the ground that he is entitled to the benefits under Section 699 1 of the RAC, the pertinent provisions of which read: Sec. 699. Allowances in case c ase of injury, death, or sickness incurred in performance of duty. — When When a person in the service of the national government of a province, city, municipality or municipal district i s 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 i n the line of duty, the Department head may in his discretion authorize the payment of the necessary hospital fees. Director Lim then forwarded petitioner's claim, in a 1st Indorsement dated June 22, 1990, to the Secretary Secre tary of Justice, along with the comment, bearing the same date, of Gerarda Galang, Chief, LED of the NBI, "recommending favorable action thereof". Finding petitioner's illness to be service-connected, the Committee on Physical Examination of the Department of Justice favorably recommended the payment of petitioner's claim. However, then Undersecretary of Justice Silvestre H. Bello I II, in a 4th Indorsement I ndorsement 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 abregate in its i ts entirety the Revised Administrative Code, including the particular Section 699 of the la tter". On May 10, 1991, Director Lim, under a 5th Indorsement transmitted transmitted anew Mecano's claim to then Undersecretary Bello for favorable consideration. Under a 6th Indorsement, dated dated July 2, 1991, Secretary Drilon forwarded petitioner's claim to the CO A Chairman, recommending recommending payment of the same. COA Chairman Eufemio C. Domingo, in his 7th Indorsement of January 16, 1992, however, denied petitioner's claim on the ground that Section 699 of the RAC had been repealed by the Administrative Code of 1987, solely for f or the reason that the same section was not restated nor re-enacted in the Administrative Code of 1987. He commented, however, however, that the claim may be filed with the Employees' Compensation Commission, Commission, considering that the illness of Director Mecano occurred after the effectivity of the Administrative Code of 1987. Eventually, petitioner's claim was returned by Undersecretary of Justice Eduardo Montenegro to Director Lim under a 9th Indorsement dated February 7, 1992, with the advice that petitioner "elevate the matter to the Supreme Court if he so desires". On the sole issue of whether or not the Administrative Code of 1987 repealed or abrogated Section 699 of the RAC, this petition was brought for the consideration of this Court. Petitioner anchors his claim on Section 699 of the RAC, as amended, and on the aforementioned Opinion No. 73, S. 1991 of Secretary Drilon. He further maintains that in the event that a claim is filed with the Employees' Compensation Commission, as suggested by respondent, he would still not be barred from fili ng a claim under the subject section. Thus, the resolution of whether or not there was a repeal r epeal of the Revised Administrative 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 Administrative Code, it can c an be gleaned that it was the intent of the legislature to repeal re peal the old Code. Moreover, the COA questions the applicability of the aforesaid opinion of the Secretary of Justice i n deciding the matter. Lastly, the COA contends that employment-related sickness, injury or death is adequately covered by the Employees' Compensation Compensation Program under P.D. 626, such that to allow simultaneous recovery of benefits under both laws on account of the same contingency would be unfair and unjust to the Government. The question of whether a particular law has been repealed or not by a subsequent law is a matter of legislative intent. i ntent. The lawmakers may expressly repeal a law by incorporating therein a repealing provision which expressly and specifically cites th e 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 specific law, identified by its number or title, is repealed is an e xpress 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 l egislature to supplant the old Code with the new Code partly depends on the scrutiny of the repealing clause of the new Code. This provision is found in Section 27, Book VII (Final Provisions) of the Administrative Code of 1987 which reads: Sec. 27. Repealing Clause. — All All laws, decrees, decree s, orders, rules and regulations, or portions thereof, inconsistent with this Code are hereby r epealed or modified accordingly. The question that should be asked is: What is the nature of this repealing clause? It is certainly ce rtainly not an express repealing clause because it fails to identify i dentify or designate the act or acts that are intended to be repealed. 5Rather, it is an example of a general repealing provision, as stated in Opinion No. 73, S. 1991. It is a clause which predicates the intended repeal under the condition that substantial substantial conflict must be f ound in existing and prior acts. The failure f ailure to add a specific repealing clause indicates that the intent was not to repeal any existing exi sting law, unless an irreconcilable inconcistency and repugnancy exist in the terms of the new and old laws. 6 This latter situation falls under the category of an implied repeal. Repeal by implication proceeds on the premise that where a statute of later date clearly reveals an intention on the part of the legislature to abrogate a prior act on the subject, that intention must be given effect. 7 Hence, before there can be a repeal,
there must be a clear showing on the part of the lawmaker that the intent in enacting the new law was to abrogate the old one. The intention to repeal must be clear and manifest; 8 otherwise, at least, as a general rule, the later act is to be construed as a continuation of, and not a substitute for, the first act and will continue so far as the two acts a re 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 repe al the earlier law. 10 Implied repeal by irreconcilable inconsistency takes place when the two statutes cover the same subject matter; they are so clearly inconsistent and incompatible with each other that they cannot be reconciled or harmonized; and both cannot be given effect, that is, that one law cannot be enforced without nullifying the other. 11 Comparing the two Codes, it is apparent that the new Code does not cover nor attempt to cover the entire subject matter of the old Code. There are several matters treated in the old Code which are not found in the new Code, such as the provisions on notaries public, the leave law, the public bonding law, military reservations, claims for sickness benefits under Section 699 , and still others. Moreover, the COA failed to demonstrate that the provisions of the two Codes on the matter of the subject claim are in an irreconcilable conflict. In fact, there can be no such conflict because the provision on sickness benefits of the nature being claimed by petitioner has not been restated in the Administrative Code of 1987. However, the COA would have Us consider that the fact that Section 699 was not restated in the Administrative Code of 1987 meant that the same section had been repealed. It further maintained that to allow the particular provisions not restated in the new Code to continue in force argues against the Code itself. The COA anchored this argument on the whereas clause of the 1987 Code, which states: WHEREAS, the effectiveness of the Government will be enhanced by a new Administrative Code which incorporate in a unified document the major structural, functional and procedural principles and rules of governance; and xxx xxx xxx It argues, in effect, that what is contemplated is only one Code — the Administrative Code of 1987. This contention is untenable. The fact that a later enactment may relate to the same subject matter as that of an earlier statute is not of itself sufficient to cause an implied repeal of the prior act, since the new statute may merely be cumulative or a continuation of the old one. 12 What is necessary is a manifest indication of legislative purpose to repeal. 13 We come now to the second category of repeal — the enactment of a statute revising or codifying the former laws on the whole subject matter. This is only possible if the revised statute or code was intended to cover the whole subject to be a complete and perfect system in itself. It is the rule that a subsequent statute is deemed to repeal a prior law if the former revises the whole subject matter of the former statute. 14 When both intent and scope clearly evidence the idea of a repeal, then all parts and provisions of the prior act that are omitted from the revised act are deemed repealed. 15 Furthermore, before there can be an implied repeal under this category, it must be the clear intent of the legislature that the later act be the substitute to the prior act. 16 According to Opinion No. 73, S. 1991 of the Secretary of Justice, what appears clear is the intent to cover only those aspects of government that pertain to administration, organization and procedure, understandably because of the many changes that transpired in the government structure since the enactment of the RAC decades of years ago. The COA challenges the weight that this opinion carries in the determination of this controversy inasmuch as the body which had been entrusted with the implementation of this particular provision has already rendered its decision. The COA reli ed 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 hold water. This principle is subject to li mitations. 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. 20The 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 r epugnancy between the two is not only irreconcilable, but also clear and convincing, and flowing necessarily from the language used, unless the later act fully embraces the subject matter of the earlier, or unless the reason for the earlier act is beyond peradventure renewed. Hence, every effort must be used to make all acts stand and if, by any reasonable construction, they can be reconciled, the later act will not operate as a repeal of the earlier. 22 Regarding respondent's contention that recovery under this subject section shall bar the recovery of benefits under the Employees' Compensation Program, the same cannot be upheld. The second sentence of Article 173, Chapter II, Title II (dealing on Employees' Compensation and State Insurance Fund), Book IV of the Labor Code, as amended by P.D. 1921, e xpressly provides that "the payment of compensation under this Title shall not bar the recovery of benefits as provided for in Section 699 of the Revised Administrative Code . . . whose benefits are administered by the system (meaning SSS or GSIS) or by other agencies of the government." WHEREFORE, premises considered, the Court resolves to GRANT the petition; respondent is hereby ordered to give due course to petitioner's claim for benefits. No costs. SO ORDERED. Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo and Melo, JJ., concur. Gutierrez, Jr., J., concur in the result.
G.R. No. L-38736 May 21, 1984 FELIPE G. TAC-AN, petitioner, vs. HONORABLE COURT OF APPEALS and ELEUTERIO ACOPIADO, MAXIMINO ACOPIADO, the SPOUSES JESUS PAGHASIAN and PILAR LIBETARIO, respondents. Liliano B. Neri for petitioner.
Vic T. Lacaya for private respondents. ABAD SANTOS, J.: The petitioner, Felipe G. Tac- An, is a lawyer whose services were engaged by the brothers Eleuterio Acopiado and Maximino Acopiado who were accused of frustrated murder and theft of large c attle before the Municipal Court of New Piñan, Zamboanga del Norte in March, 1960. On April 4, 1960, Tac-An caused a document entitled, "Deed of Quitclaim" to be thumb-marked by the Acopiado brothers whereby for the sum of P1,200.00 representing his fees as their lawyer in the criminal cases, they conveyed to him a parce l of land with an area of three hectares. The document was acknowledged before Notary Public Pacifico Cimafranca on the same date who explained its contents to the Acopiados. On April 6, 1960, or two days after the execution of the deed, the Acopiados told Tac-An that they were terminating his services because their wives and parents did not agree that the land be given to pay for his services. They also said that they had hired another lawyer, a relative, to defend them. But Tac- An continued to represent them. In the case for frustrated murder, the Acopiados were acquitted. The cases for theft of large cattle were dismissed due to th e desistance of the complainants. On April 2, 1961, Eleuterio sold his share of the land previously conveyed to Tac-An to Jesus Paghasian and Pilar Libetario but the latter did not take possession thereof. In June, 1964, Tac-An appointed Irineo Villejo, a barrio captain, as his overseer in the land. On July 2, 1964, Tac -An also secured the approval of the Provincial Governor of Z amboanga del Norte to the Deed of Quitclaim. And on October 7, 1964, Tac-An filed a complaint against the Acopiado brothers, Paghasian and Libetario in the CFI of Zamboanga del Norte. He prayed that he be declared the owner of the land; that the sale made in favor of Paghasian and owner Libetario be annulled; and that he be paid damages, attorney's fees, etc. The Court of First Instance decided in favor of Tac- An whereupon the Acopiados, et al. appealed to the Court of Appeals. The Court of Appeals voided the transfer of the land to Tac-An but held that for his services in the criminal cases he was entitled to the agreed upon amount of P1,200.00. The judgment of the Court of Appeals reads as follows: WHEREFORE, the judgment appealed from is hereby reversed and set aside. In lieu thereof, another one is rendered ordering the defendants Acopiados to pay the plaintiff the sum of P1,200.00 with interest at a legal rate from the date of the finality of this judgment until full payment thereof. No pronouncement as to costs. (Rollo, pp. 40-41.) Petitioner Tac-An prays that the decision of the Court of Appeals be set aside and that the decision of the Court of First Instance be upheld instead. The petition is not impressed with merit. The Court of Appeals found as a fact that the Acopiado brothers fully understood the tenor of the Deed of Quitclaim which they executed. But the Court of Appeals also found as a fact that the Acopiado brothers are Non -Christians, more specifically Subanons, and that each is married to a Subanon. And because they are Non-Christians, the Court of Appeals applied Section 145 of the Administrative Code of Mindanao and Sulu which reads as follows: Sec. 145. Contracts with Non-Christians requisites. -- Save and except contracts of sale or barter of personal property and contracts of personal service comprehended in chapter seventeen hereof no contract or agreement shall be made in the Department by any person with any Moro or other non-Christian tribe or portion thereof the Department or with any individual Moro or other non-Christian inhabitants of the same for the payment or delivery of money or other things of value in present or in prospective, or in the manner affecting or relating to any real property, unless such contract or agreement be executed and approved as follows: xxx xxx xxx (b) It shall be executed before a judge of a court of record, justice or auxilliary justice of the peace, or notary public, and shall bear the approval of the provincial governor wherein the same was executed or his representative duly authorized in writing for such purpose, indorsed upon it. It should be stated that under Section 146 of the same Code, contracts or agreements made in violation of Sec. 145 shall be "null and void." It should be recalled that on July 2, 1964, Tac-An secured the approval of the Provincial Governor of Zamboanga del Norte to the Deed of Quitclaim and that should have satisfied the requirement of Sec. 145 of the Administrative Code for Mindanao and Sulu. But it appears that on April 12, 1965, while Tac-An's suit was pending in the trial court, the Governor of Zamboanga del Norte revoked his approval for the reasons stated therein. The petitioner now asserts that the revocation of the approval which had been given by the Provincial Governor has no legal effect and cannot affect his right to the land which had already vested. But as Justice Conrado M. Vasquez, with Justices Mateo Canonoy and Ameurfina M. Herrera concurring, said: The approval by Provincial Governor Felipe Azcuna appearing on the face of the Deed of Quitclaim (Exh. "E ") made on July 2, 1964 may no longer be relied upon by the plaintiff in view of the revocation thereof by the same official on April 12, 1965 (Exh. 4). The revocation was based on the ground that the signature of Governor Azcuna was obtained thru a false representation to the effect that the alleged transaction was legal and voluntary when in truth and in fact, as found out later, the said parcel of land was the subject matter of a court litigation; and, moreover, the non-Christian vendors were not brought before him for interrogation, confirmation or ratification of the alleged deed of quitclaim. The fact that the revocation was made after the filing of instant action on October 10, 1964 does not vitiate the aforesaid action of the Provincial Governor. Significantly, no attempt was made to disprove the truth of the reasons stated in the certificate of revocation (Exh. 4). (Rollo, p. 37.) The petitioner also argues that the Administrative Code of Mindanao and Sulu was repealed on June 19, 1965 by Republic Act No, 4252, hence the approval of the Provincial Governor became unnecessary. Suffice it to say that at times material to the case, i.e. when the Deed of Quitclaim was executed, when the approval by the Provincial Governor was given and when the approval was revoked, Sections 145 and 146 of the Administrative Code of Mindanao and Sulu were in full force and effect and since they were substantive in nature the repealing statute cannot be given retroactive effect. I t should also be stated that the
