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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-50908 January 31, 1984 MARY CONCEPCION BAUTISTA and ENRIQUE D. BAUTISTA, Petitioners, vs. ALFREDO L. JUINIO, ROMEO F. EDU and FIDEL V. RAMOS, Respondents.

FERNANDO, C.J.: The validity of an energy conservation measure, Letter of Instruction No. 869, issued on May 31, 1979 - the response to the protracted oil crisis that dates back to 1974 - is put in issue in this prohibition proceeding filed by petitioners, spouses Mary Concepcion Bautista and Enrique D. Bautista, for being allegedly violative of the due process and equal protection guarantees 1 of the Constitution. The use of private motor vehicles with H and EH plates on week-ends and holidays was banned from "[12:00] a.m. Saturday morning to 5:00 a.m. Monday morning, or 1:00 a.m. of the holiday to 5:00 a.m. of the day after the holiday." 2 Motor vehicles of the following classifications are exempted: (a) S (Service); (b) T (Truck); (e) DPL (Diplomatic); (d) CC (Consular Corps); (e) TC (Tourist Cars). 3 Pursuant thereto, respondent Alfredo L. Juinio, then Minister of Public Works, Transportation and Communications and respondent Romeo P. Edu, then Commissioner of Land Transportation Commission issued on June 11, 1979, Memorandum Circular No. 39, which imposed "the penalties of fine, confiscation of vehicle and cancellation of registration on owners of the above-specified vehicles" found violating such Letter of Instruction. 4 It was then alleged by petitioners that "while the purpose for the issuance of the LOI 869 is laudable, to wit, energy conservation, the provision banning the use of H and EH [vehicles] is unfair, discriminatory, [amounting to an] arbitrary classification" and thus in contravention of the equal protection clause. 5 Moreover, for them, such Letter of Instruction is a denial of due process, more specifically, "of their right to use and enjoy their private property and of their freedom to travel and hold family gatherings, reunions and outings on week-ends and holidays," inviting attention to the fact that others not included in the ban enjoying "unrestricted freedom." 6 It would follow, so they contend that Memorandum Circular No. 39 imposing penalties of fine, confiscation of the vehicle and cancellation of license is likewise unconstitutional, for being violative of the doctrine of "undue delegation of legislative power." 7 It is to be noted that such Memorandum Circular does not impose the penalty of confiscation but merely that of impounding, fine, and for the third offense that of cancellation of certificate of registration and for the rest of the year or for ninety days whichever is longer.chanroblesvirtualawlibrary chanrobles virtual law library This Court gave due course to the petition requiring respondent to answer. There was admission of the facts as substantially alleged except, as previously noted, that the ban starts at 12:00 a.m. rather than 1:00 a.m. of a Saturday or of a holiday and as to the mention of a Willy's Kaiser jeep being registered in the name of a certain Teresita Urbina, about which respondents had no knowledge. There was a denial of the allegations that the classification of vehicles into heavy H and extra heavy (EH) on the other hand and light and bantam on the other hand was violative of equal protection and the regulation as to the use of the former cars on the dates specified a transgression of due process. The answer

likewise denied that there was an undue delegation of legislative power, reference being made to the Land Transportation and Traffic Code. 8 There was also a procedural objection raised, namely, that what is sought amounts at most to an advisory opinion rather than an ajudication of a case or controversy.chanroblesvirtualawlibrary chanrobles virtual law library Petitioners filed a motion to be allowed to reply to the answer. It was granted. The reply, considering its exhaustive character serving as its memorandum, stressed anew what it emphasized as the arbitrary, unreasonable, and oppressive aspects of the challenged Letter of Instruction and Memorandum Circular No. 39. It disputed what it characterized as an "erroneous and arbitrary presumption that heavy car owners unnecessarily use and therefore waste gasoline whenever they drive their cars on week-ends and holidays;" 9 it stigmatized the ban as defeating its "avowed purpose in the case of the affluent who own not only heavy limousines but also many small cars [as] they may be compelled to use at least two small cars;" 10 referred to the high cost of taxis or other public transports for those "not able to afford expensive small cars [possibly] only one heavy and possible old model;" 11 cited the case of "many eight cylinder vehicles which because of their weight have been registered as light but in fact consume more or as much gasoline as the banned vehicles." 12 Their conclusion is that "the ban imposed, in result and effect is class legislation." 13 The parties were required to submit memoranda. Respondents did so but not petitioners. They relied on their reply to the answer - as noted, a rather comprehensive pleading. For reasons to be set forth, this Court holds that the petition cannot prosper.chanroblesvirtualawlibrary chanrobles virtual law library 1. First as to the procedural objection. In the memorandum for respondents, one of the issues raised was whether "the power of judicial review may be invoked considering the inadequacy of the record and the highly abstract and academic questions raised by the petitioners." 14 It is inaccurate to say that the record is inadequate. It does not admit of doubt that the ban applies to petitioners who are "the registered owners of an eight cylinder 1969 Buick, and the vendees of a six cylinder Willy's kaiser jeep, which are both classified as heavy or H." 15 To that extent, therefore, the enforcement of the assailed Letter of Instruction will amount to a deprivation of what otherwise would be a valid exercise of a property right. Thus they fall squarely within "the unchallenged rule" as to who may raise a constitutional question, namely, to quote the language of Justice Laurel in the leading case of People v. Vera, 16 "that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result of its enforcement. 17 Moreover, that rule has been considerably relaxed. 18 The question then is neither abstract nor academic as contended by respondents.chanroblesvirtualawlibrary chanrobles virtual law library 2. There is, however, this formidable obstacle that confronts petitioners. What they seek is for this Court to hold that a Letter of Instruction, a regulatory measure precisely enacted to cope with the serious and grave problem of energy conservation, is void on its face. Such a task is rendered unusually difficult by what has been referred to by Justice Laurel in the leading case of Angara v. Electoral Commission 19 as the "presumption of constitutionality" and by the same jurist in the case of People v. Vera 20 in slightly different words "a presumption that such an act falls within constitutional limitations." There is need then for a factual foundation of invalidity. In the language of Ermita-Malate Hotel & Motel Operations Association, Inc. v. City Mayor or Manila: "It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the case here. The principle has been nowhere better expressed than in the leading case of O'Gorman & Young v. Hartford Fire Insurance Co., where the American Supreme Court through Justice Brandeis tersely and succinctly summed up the matter

thus: 'The statute here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on the ground that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute.' " 21 chanrobles virtual law library 3. It is true, of course, that there may be instances where a police power measure may, because of its arbitrary, oppressive or unjust character, be held offensive to the due process clause and, therefore, may, when challenged in an appropriate legal proceeding, be declared void on its face. This is not one of them. A recital of the whereas clauses of the Letter of Instruction makes it clear. Thus: "[Whereas], developments in the international petroleum supply situation continue to follow a trend of limited production and spiralling prices thereby precluding the possibility of immediate relief in supplies within the foreseeable future; [Whereas], the uncertainty of fuel supply availability underscores a compelling need for the adoption of positive measures designed to insure the viability of the country's economy and sustain its developmental growth; [Whereas], to cushion the effect of increasing oil prices and avoid fuel supply disruptions, it is imperative to adopt a program directed towards the judicious use of our energy resources complemented with intensified conservation efforts and efficient utilization thereof; * * *." 22 That is undeniable is that the action taken is an appropriate response to a problem that presses urgently for solution. It may not be the only alternative, but its reasonableness is immediately apparent. Thus, to repeat, substantive due process, which is the epitome of reasonableness and fair play, is not ignored, much less infringed.chanroblesvirtualawlibrary chanrobles virtual law library 4. In the interplay between such a fundamental right and police power, especially so where the assailed governmental action deals with the use of one's property, the latter is accorded much leeway. That is settled law. What is more, it is good law. Due process, therefore, cannot be validly invoked. As stressed in the cited Ermita-Malate Hotel decision: "To hold otherwise would be to unduly restrict and narrow the scope of police power which has been properly characterized as the most essential, insistent and the least limitable of powers, extending as it does 'to all the great public needs.' It would be, to paraphrase another leading decision, to destroy the very purpose of the state if it could be deprived or allowed itself to be deprived of its competence to promote public health, public morals, public safety and the general welfare. Negatively put, police power is 'that inherent and plenary power in the State which enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society.' " 23 chanrobles virtual law library 5. The due process question having been disposed of, there is still the objection based on the equal protection clause to be considered. A governmental act may not be offensive to the due process clause, but may run counter to such a guarantee. Such is the case when there is no rational basis for the classification followed. That is the point raised by petitioners. For them, there is no rational justification for the ban being imposed on vehicles classified as heavy (H) and extra-heavy (EH), for precisely those owned by them fall within such category. Tested by the applicable standard that must be satisfied to avoid the charge of a denial of equal protection, the objection of petitioners is shown to be lacking in merit. Such a classification on its face cannot be characterized as an affront to reason. A legal norm according to J.M. Tuason & Co., Inc. vs. Land Tenure Administration, 24 "whether embodied in a rule, principle, or standard, constitutes a defense against anarchy at one extreme and tyranny at the other. Thereby, people living together in a community with its myriad and complex problems can minimize the friction and reduce the conflicts, to assure, at the very least, a peaceful ordering of existence. The Ideal situation is for the law's benefits to be available to all, that none be

placed outside the sphere of its coverage. Only thus could chance and favor be excluded and the affairs of men governed by that serene and impartial uniformity, which is of the very essence of the Idea of law. The actual, given things as they are and likely to continue to be, cannot approximate the Ideal. Nor is the law susceptible to the reproach that it does not take into account the realties of the situation. * * * To assure that the general welfare be promoted, which is the end of law, a regulatory measure may cut into the rights to liberty and property. Those adversely affected may under such circumstances invoke the equal protection clause only if they can show that the governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason. It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not Identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 25 chanrobles virtual law library 6. Nor does it militate against the validity of the Letter of Instruction just because the ban imposed does not go as far as it could have and therefore could be less efficacious in character. That was the solution which for the President expressing a power validly lodged in him, recommended itself. There was a situation that called for a corrective measure. He decided that what was issued by him would do just that or, at the very least, help in easing the situation. That it did not cover other matters which could very well have been regulated does not call for a declaration of nullity. The President, to paraphrase Lutz v. Araneta, 26 "is not required by the Constitution to adhere to the policy of all or none." 27 It is quite obvious then that no equal protection question arises.chanroblesvirtualawlibrary chanrobles virtual law library 7. It may not be amiss to refer to a 1981 American Supreme Court decision, Minnesota v. Clover Leaf Creamery Company. 28 Respondent along with several other business corporations adversely affected involved in the manufacture and utilization of plastic milk containers filed suit in a Minnesota district court seeking to enjoin enforcement of a Minnesota statute banning the retail sale of milk in plastic nonreturnable, nonrefillable containers, but permitting such sale in other nonreturnable, nonrefillable containers, such as paperboard, milk cartons. After conducting extensive evidentiary hearings, the Minnesota court enjoined enforcement of the statute, finding that it violated among others the equal protection clause of the Fourteenth Amendment to the Federal Constitution. The Minnesota Supreme Court affirmed. On certiorari, the United States Supreme Court reversed, with only Justice Stevens dissenting. The opinion by Justice Brennan noted that "proponents of the legislation argued that it would promote resource conservation, ease solid waste disposal problems, and conserve energy." 29 That sufficed for the Court to conclude "that the ban on plastic nonreturnable milk containers bears a rational relation to the State's objectives, and must be sustained under the Equal Protection Clause." 30 It does show that notwithstanding the "new equal protection approach" with its emphasis on "suspect classification" and "fundamental rights and interests standard," a concept so ably expounded by professor Gunther, the "rational relation test" 31 still retains its validity. Not that there could be any objection to the classification here followed as being in any way susceptible to such a pejorative expression as "suspect" or that the assailed Letter of Instruction does not qualify under "the fundamental rights and interests" standard chanrobles virtual law library

8. There was set forth in the petition what were referred to as "other reasonable measures which the authorities concerned with energy conservation can take immediately, which are in fact acceptable and obviously called for and should have been done long ago, to wit: 1. require and establish taxi stands equipped with efficient telephone and communication systems; 2. strict implementation and observance of cargo truck hours on main arteries; 3. strict observance of traffic rules; 4. effective solution of traffic problems and decongestion of traffic through rerouting and quick repair of roads and efficient operation of double decker buses; 5. rationing of gasoline to avoid panic buying and give the private car owner the option and responsibility of deciding on the use of his allocation; 6. allow neon and electrically devised advertising signs only from five o'clock p.m. to nine o'clock p.m. 7. prohibit immediately the importation of heavy and luxury cars and seriously re-examine the car manufacturing program." 32 Admittedly, such measures are conducive to energy conservation. The question before us however is limited to whether or not Letter of Instruction 869 as implemented by Memorandum Circular No. 39 is violative of certain constitutional rights. It goes no further than that. The determination of the mode and manner through which the objective of minimizing the consumption of oil products may be attained is left to the discretion of the political branches. 33 Absent therefore the alleged infringement of constitutional rights, more precisely the due process and equal protection guarantees, this Court cannot adjudge Letter of Instruction No. 869 as tainted by unconstitutionality.chanroblesvirtualawlibrary chanrobles virtual law library 9. It was likewise contended that Memorandum Circular No. 39, issued by the then respondent Minister of Public Works, Transportation and Communications, and then respondent Land Transportation Commissioner, imposing the penalties "of fine, confiscation of vehicle and cancellation of license is likewise unconstitutional," petitioners invoking the principle of non-delegation of legislative power. 34 To that extent that a Letter of Instruction may be viewed as an exercise of the decree-making power of the President, then such an argument is futile. If, however, viewed as a compliance with the duty to take care that the laws be faithfully executed, as a consequence of which subordinate executive officials may in turn issue implementing rules and regulations, then the objection would properly be considered as an ultra vires allegation. There is this relevant excerpt from Teoxon v. Member of the Board of Administrators: 35 "1. The recognition of the power of administrative officials to promulgate rules in the implementation of the statute, necessarily limited to what is provided for in the legislative enactment, may be found in the early case of United States v. Barrias decided in 1908. Then came, in a 1914 decision, United States v. Tupasi Molina, a delineation of the scope of such competence. Thus: 'Of course the regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself can not be extended. So long, however, as the regulations relate solely to carrying into effect the provisions of the law, they are valid.' In 1936, in People v. Santos, this Court expressed its disapproval of an administrative order that would amount to an excess of the regulatory power vested in an administrative official. We reaffirmed such a doctrine in a 1951 decision, where we again made clear that where an administrative order betrays inconsistency or repugnancy to the provisions of the Act, 'the mandate of the Act must prevail and must be followed.' Justice Barrera, speaking for the Court in Victorias Milling Company, Inc. v. Social Security Commission, citing Parker as well as Davis did tersely sum up the matter thus: 'A rule is binding on tile courts so long as the procedure fixed for its promulgation is followed and its scope is within the statutory granted by the legislature, even if the courts are not in agreement with the policy stated therein or its innate wisdom * * *. On the other hand, administrative interpretation of the law is at best merely advisory, for it is the courts that finally determine what the law means.' It cannot be otherwise as the Constitution limits the authority of the President, in whom all executive power resides, to take care that the laws be faithfully executed. No lesser administrative executive office or agency then can,

contrary to the express language of the Constitution, assert for itself a more extensive prerogative." 36 It was alleged in the Answer of Solicitor General Estelito P. Mendoza that Letter of Instruction 869 and Memorandum Circular No. 39 were adopted pursuant to the Land Transportation and Traffic Code. 37 It contains a specific provision as to penalties. 38 Thus: "For violation of any provisions of this Act or regulations promulgated pursuant hereto, not hereinbefore specifically punished, a fine of not less than ten nor more than fifty pesos shall be imposed." 39 Memorandum Circular No. 39 cannot be held to be ultra vires as long as the fine imposed is not less than ten nor more than fifty pesos. As to suspension of registration, 40 the Code, insofar as applicable, provides: "Whenever it shall appear from the records of the Commission that during any twelve-month period more than three warnings for violations of this Act have been given to the owner of a motor vehicle, or that the said owner has been convicted by a competent court more than once for violation of such laws, the Commissioner may, in his discretion, suspend the certificate of registration for a period not exceeding ninety days and, thereupon, shall require the immediate surrender of the number plates * * *." 41 It follows that while the imposition of a fine or the suspension of registration under the conditions therein set forth is valid under the Land Transportation and Traffic Code, the impounding of a vehicle finds no statutory justification. To apply that portion of Memorandum Circular No. 39 would be ultra vires. It must likewise be made clear that a penalty even if warranted can only be imposed in accordance with the procedure required by law. 42 chanrobles virtual law library WHEREFORE, the petition is dismissed. Aquino, Guerrero, De Castro, Melencio-Herrera, Escolin, Relova and Gutierrez, Jr., JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library Makasiar and Concepcion J., took no part.chanroblesvirtualawlibrary chanrobles virtual law library Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 89572 December 21, 1989 DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS) and DIRECTOR OF CENTER FOR EDUCATIONAL MEASUREMENT, Petitioners, vs. ROBERTO REY C. SAN DIEGO and JUDGE TERESITA DIZON-CAPULONG, in her capacity as Presiding Judge of the Regional Trial Court of Valenzuela, Metro Manila, Branch 172, Respondents.

CRUZ, J.: The issue before us is mediocrity. The question is whether a person who has thrice failed the National Medical Admission Test (NMAT) is entitled to take it again.chanroblesvirtualawlibrary chanrobles virtual law library The petitioner contends he may not, under its rule that-

h) A student shall be allowed only three (3) chances to take the NMAT. After three (3) successive failures, a student shall not be allowed to take the NMAT for the fourth time. The private respondent insists he can, on constitutional grounds.chanroblesvirtualawlibrary chanrobles virtual law library But first the facts.chanroblesvirtualawlibrary chanrobles virtual law library The private respondent is a graduate of the University of the East with a degree of Bachelor of Science in Zoology. The petitioner claims that he took the NMAT three times and flunked it as many times. 1 When he applied to take it again, the petitioner rejected his application on the basis of the aforesaid rule. He then went to the Regional Trial Court of Valenzuela, Metro Manila, to compel his admission to the test.chanroblesvirtualawlibrary chanrobles virtual law library In his original petition for mandamus, he first invoked his constitutional rights to academic freedom and quality education. By agreement of the parties, the private respondent was allowed to take the NMAT scheduled on April 16, 1989, subject to the outcome of his petition. 2 In an amended petition filed with leave of court, he squarely challenged the constitutionality of MECS Order No. 12, Series of 1972, containing the above-cited rule. The additional grounds raised were due process and equal protection.chanroblesvirtualawlibrary chanrobles virtual law library After hearing, the respondent judge rendered a decision on July 4, 1989, declaring the challenged order invalid and granting the petition. Judge Teresita Dizon-Capulong held that the petitioner had been deprived of his right to pursue a medical education through an arbitrary exercise of the police power. 3 chanrobles virtual law library We cannot sustain the respondent judge. Her decision must be reversed.chanroblesvirtualawlibrary chanrobles virtual law library In Tablarin v. Gutierrez, 4 this Court upheld the constitutionality of the NMAT as a measure intended to limit the admission to medical schools only to those who have initially proved their competence and preparation for a medical education. Justice Florentino P. Feliciano declared for a unanimous Court: Perhaps the only issue that needs some consideration is whether there is some reasonable relation between the prescribing of passing the NMAT as a condition for admission to medical school on the one hand, and the securing of the health and safety of the general community, on the other hand. This question is perhaps most usefully approached by recalling that the regulation of the pratice of medicine in all its branches has long been recognized as a reasonable method of protecting the health and safety of the public. That the power to regulate and control the practice of medicine includes the power to regulate admission to the ranks of those authorized to practice medicine, is also well recognized. Thus, legislation and administrative regulations requiring those who wish to practice medicine first to take and pass medical board examinations have long ago been recognized as valid exercises of governmental power. Similarly, the establishment of minimum medical educational requirements-i.e., the completion of prescribed courses in a recognized medical school-for admission to the medical profession, has also been sustained as a legitimate exercise of the regulatory authority of the state. What we have before us in the instant case is closely related: the regulation of access to medical schools.

MECS Order No. 52, s. 1985, as noted earlier, articulates the rationale of regulation of this type: the improvement of the professional and technical quality of the graduates of medical schools, by upgrading the quality of those admitted to the student body of the medical schools. That upgrading is sought by selectivity in the process of admission, selectivity consisting, among other things, of limiting admission to those who exhibit in the required degree the aptitude for medical studies and eventually for medical practice. The need to maintain, and the difficulties of maintaining, high standards in our professional schools in general, and medical schools in particular, in the current state of our social and economic development, are widely known.chanroblesvirtualawlibrary chanrobles virtual law library We believe that the government is entitled to prescribe an admission test like the NMAT as a means of achieving its stated objective of "upgrading the selection of applicants into [our] medical schools" and of "improv[ing] the quality of medical education in the country." Given the widespread use today of such admission tests in, for instance, medical schools in the United States of America (the Medical College Admission Test [MCAT] and quite probably, in other countries with far more developed educational resources than our own, and taking into account the failure or inability of the petitioners to even attempt to prove otherwise, we are entitled to hold that the NMAT is reasonably related to the securing of the ultimate end of legislation and regulation in this area. That end, it is useful to recall, is the protection of the public from the potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma. However, the respondent judge agreed with the petitioner that the said case was not applicable. Her reason was that it upheld only the requirement for the admission test and said nothing about the socalled "three-flunk rule." chanrobles virtual law library We see no reason why the rationale in the Tablarin case cannot apply to the case at bar. The issue raised in both cases is the academic preparation of the applicant. This may be gauged at least initially by the admission test and, indeed with more reliability, by the three-flunk rule. The latter cannot be regarded any less valid than the former in the regulation of the medical profession.chanroblesvirtualawlibrary chanrobles virtual law library There is no need to redefine here the police power of the State. Suffice it to repeat that the power is validly exercised if (a) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State, and (b) the means employed are reasonably necessary to the attainment of the object sought to be accomplished and not unduly oppressive upon individuals. 5 chanrobles virtual law library In other words, the proper exercise of the police power requires the concurrence of a lawful subject and a lawful method.chanroblesvirtualawlibrary chanrobles virtual law library The subject of the challenged regulation is certainly within the ambit of the police power. It is the right and indeed the responsibility of the State to insure that the medical profession is not infiltrated by incompetents to whom patients may unwarily entrust their lives and health.chanroblesvirtualawlibrary chanrobles virtual law library

The method employed by the challenged regulation is not irrelevant to the purpose of the law nor is it arbitrary or oppressive. The three-flunk rule is intended to insulate the medical schools and ultimately the medical profession from the intrusion of those not qualified to be doctors.chanroblesvirtualawlibrary chanrobles virtual law library While every person is entitled to aspire to be a doctor, he does not have a constitutional right to be a doctor. This is true of any other calling in which the public interest is involved; and the closer the link, the longer the bridge to one's ambition. The State has the responsibility to harness its human resources and to see to it that they are not dissipated or, no less worse, not used at all. These resources must be applied in a manner that will best promote the common good while also giving the individual a sense of satisfaction.chanroblesvirtualawlibrary chanrobles virtual law library A person cannot insist on being a physician if he will be a menace to his patients. If one who wants to be a lawyer may prove better as a plumber, he should be so advised and adviced. Of course, he may not be forced to be a plumber, but on the other hand he may not force his entry into the bar. By the same token, a student who has demonstrated promise as a pianist cannot be shunted aside to take a course in nursing, however appropriate this career may be for others.chanroblesvirtualawlibrary chanrobles virtual law library The right to quality education invoked by the private respondent is not absolute. The Constitution also provides that "every citizen has the right to choose a profession or course of study, subject to fair, reasonable and equitable admission and academic requirements. 6 chanrobles virtual law library The private respondent must yield to the challenged rule and give way to those better prepared. Where even those who have qualified may still not be accommodated in our already crowded medical schools, there is all the more reason to bar those who, like him, have been tested and found wanting.chanroblesvirtualawlibrary chanrobles virtual law library The contention that the challenged rule violates the equal protection clause is not well-taken. A law does not have to operate with equal force on all persons or things to be conformable to Article III, Section 1 of the Constitution.chanroblesvirtualawlibrary chanrobles virtual law library There can be no question that a substantial distinction exists between medical students and other students who are not subjected to the NMAT and the three-flunk rule. The medical profession directly affects the very lives of the people, unlike other careers which, for this reason, do not require more vigilant regulation. The accountant, for example, while belonging to an equally respectable profession, does not hold the same delicate responsibility as that of the physician and so need not be similarly treated.chanroblesvirtualawlibrary chanrobles virtual law library There would be unequal protection if some applicants who have passed the tests are admitted and others who have also qualified are denied entrance. In other words, what the equal protection requires is equality among equals.chanroblesvirtualawlibrary chanrobles virtual law library The Court feels that it is not enough to simply invoke the right to quality education as a guarantee of the Constitution: one must show that he is entitled to it because of his preparation and promise. The private respondent has failed the NMAT five times. 7 While his persistence is noteworthy, to say the least, it is certainly misplaced, like a hopeless love.chanroblesvirtualawlibrary chanrobles virtual law library

No depreciation is intended or made against the private respondent. It is stressed that a person who does not qualify in the NMAT is not an absolute incompetent unfit for any work or occupation. The only inference is that he is a probably better, not for the medical profession, but for another calling that has not excited his interest.chanroblesvirtualawlibrary chanrobles virtual law library In the former, he may be a bungler or at least lackluster; in the latter, he is more likely to succeed and may even be outstanding. It is for the appropriate calling that he is entitled to quality education for the full harnessing of his potentials and the sharpening of his latent talents toward what may even be a brilliant future.chanroblesvirtualawlibrary chanrobles virtual law library We cannot have a society of square pegs in round holes, of dentists who should never have left the farm and engineers who should have studied banking and teachers who could be better as merchants.chanroblesvirtualawlibrary chanrobles virtual law library It is time indeed that the State took decisive steps to regulate and enrich our system of education by directing the student to the course for which he is best suited as determined by initial tests and evaluations. Otherwise, we may be "swamped with mediocrity," in the words of Justice Holmes, not because we are lacking in intelligence but because we are a nation of misfits.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the petition is GRANTED. The decision of the respondent court dated January 13, 1989, is REVERSED, with costs against the private respondent. It is so ordered. Fernan, C.J., Narvasa Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., . Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-61311 September 2l, 1987 FELICIDAD VILLANUEVA, FERNANDO CAISIP, ANTONIO LIANG, FELINA MIRANDA, RICARDO PUNO, FLORENCIO LAXA, and RENE OCAMPO, Petitioners, vs. HON. MARIANO CASTAEDA, JR., Presiding Judge of the Court of First Instance of Pampanga, Branch III, VICENTE A. MACALINO, Officer-in-Charge, Office of the Mayor, San Fernando, Pampanga, Respondents.chanrobles virtual law library

CRUZ, J.: chanrobles virtual law library There is in the vicinity of the public market of San Fernando, Pampanga, along Mercado Street, a strip of land measuring 12 by 77 meters on which stands a conglomeration of vendors stalls together forming what is commonly known as a talipapa. This is the subject of the herein petition. The petitioners claim they have a right to remain in and conduct business in this area by virtue of a previous

authorization granted to them by the municipal government. The respondents deny this and justify the demolition of their stalls as illegal constructions on public property. At the petitioners' behest, we have issued a temporary restraining order to preserve the status quo between the parties pending our decision. 1 Now we shall rule on the merits.chanroblesvirtualawlibrary chanrobles virtual law library This dispute goes back to November 7, 1961, when the municipal council of San Fernando adopted Resolution No. 218 authorizing some 24 members of the Fernandino United Merchants and Traders Association to construct permanent stags and sell in the above-mentioned place. 2 The action was protested on November 10, 1961, in Civil Case No. 2040, where the Court of First Instance of Pampanga, Branch 2, issued a writ of preliminary injunction that prevented the defendants from constructing the said stalls until final resolution of the controversy. 3 On January 18, 1964, while this case was pending, the municipal council of San Fernando adopted Resolution G.R. No. 29, which declared the subject area as "the parking place and as the public plaza of the municipality, 4 thereby impliedly revoking Resolution No. 218, series of 1961. Four years later, on November 2, 1968, Judge Andres C. Aguilar decided the aforesaid case and held that the land occupied by the petitioners, being public in nature, was beyond the commerce of man and therefore could not be the subject of private occupancy. 5 The writ of preliminary injunction was made permanent. 6 chanrobles virtual law library The decision was apparently not enforced, for the petitioners were not evicted from the place; in fact, according to then they and the 128 other persons were in 1971 assigned specific areas or space allotments therein for which they paid daily fees to the municipal government. 7 The problem appears to have festered for some more years under a presumably uneasy truce among the protagonists, none of whom made any move, for some reason that does not appear in the record. Then, on January 12, 1982, the Association of Concerned Citizens and Consumers of San Fernando filed a petition for the immediate implementation of Resolution No. 29, to restore the subject property "to its original and customary use as a public plaza. 8 chanrobles virtual law library Acting thereon after an investigation conducted by the municipal attorney, 9 respondent Vicente A. Macalino, as officer-in-charge of the office of the mayor of San Fernando, issued on June 14, 1982, a resolution requiring the municipal treasurer and the municipal engineer to demolish the stalls in the subject place beginning July 1, 1982. 10 The reaction of the petitioners was to file a petition for prohibition with the Court of First Instance of Pampanga, docketed as Civil Case No. 6470, on June 26, 1982. The respondent judge denied the petition on July 19, 1982, 11 and the motion for reconsideration on August 5, 1982, 12 prompting the petitioners to come to this Court on certiorari to challenge his decision. 13 As required, respondent Macalino filed his comment 14 on the petition, and the petitioners countered with their reply. 15 In compliance with our resolution of February 2, 1983, the petitioners submitted their memorandum 16 and respondent Macalino, for his part, asked that his comment be considered his memorandum. 17 On July 28, 1986, the new officer-in-charge of the office of the mayor of San Fernando, Paterno S. Guevarra, was impleaded in lieu of Virgilio Sanchez, who had himself earlier replaced the original respondent Macalino. 18 chanrobles virtual law library After considering the issues and the arguments raised by the parties in their respective pleadings, we rule for the respondents. The petition must be dismissed.chanroblesvirtualawlibrary chanrobles virtual law library

There is no question that the place occupied by the petitioners and from which they are sought to be evicted is a public plaza, as found by the trial court in Civil Case No. 2040. This finding was made after consideration of the antecedent facts as especially established by the testimony of former San Fernando Mayor Rodolfo Hizon, who later became governor of Pampanga, that the National Planning Commission had reserved the area for a public plaza as early as 1951. This intention was reiterated in 1964 through the adoption of Resolution No. 29. 19 It does not appear that the decision in this case was appealed or has been reversed. In Civil Case G.R. No. 6740, which is the subject of this petition, the respondent judge saw no reason to disturb the finding in Civil Case No. 2040 and indeed used it as a basis for his own decision sustaining the questioned order. 20 chanrobles virtual law library The basic contention of the petitioners is that the disputed area is under lease to them by virtue of contracts they had entered into with the municipal government, first in 1961 insofar as the original occupants were concerned, and later with them and the other petitioners by virtue of the space allocations made in their favor in 1971 for which they saw they are paying daily fees. 21 The municipal government has denied making such agreements. In any case, they argue, since the fees were collected daily, the leases, assuming their validity, could be terminated at will, or any day, as the claimed rentals indicated that the period of the leases was from day to day. 22 chanrobles virtual law library The parties belabor this argument needlessly.chanroblesvirtualawlibrary chanrobles virtual law library A public plaza is beyond the commerce of man and so cannot be the subject of lease or any other contractual undertaking. This is elementary. Indeed, this point was settled as early as in Municipality of Cavite vs. Rojas, 23 decided in 1915, where the Court declared as null and void the lease of a public plaza of the said municipality in favor of a private person.chanroblesvirtualawlibrary chanrobles virtual law library Justice Torres said in that case: According to article 344 of the Civil Code: "Property for public use in provinces and in towns comprises the provincial and town roads, the squares, streets, fountains, and public waters, the promenades, and public works of general service supported by said towns or provinces.chanroblesvirtualawlibrary chanrobles virtual law library The said Plaza Soledad being a promenade for public use, the municipal council of Cavite could not in 1907 withdraw or exclude from public use a portion thereof in order to lease it for the sole benefit of the defendant Hilaria Rojas. In leasing a portion of said plaza or public place to the defendant for private use the plaintiff municipality exceeded its authority in the exercise of its powers by executing a contract over a thing of which it could not dispose, nor is it empowered so to do.chanroblesvirtualawlibrary chanrobles virtual law library The Civil Code, article 1271, prescribes that everything which is not outside the commerce of man may be the object of a contract, and plazas and streets are outside of this commerce, as was decided by the supreme court of Spain in its decision of February 12, 1895, which says: "communal things that cannot be sold because they are by their

very nature outside of commerce are those for public use, such as the plazas, streets, common lands, rivers, fountains, etc." chanrobles virtual law library Therefore, it must be concluded that the contract, Exhibit C, whereby the municipality of Cavite leased to Hilaria Rojas a portion of the Plaza Soledad is null and void and of no force or effect, because it is contrary to the law and the thing leased cannot be the object of a was held that the City of contract. In Muyot vs. de la Fuente, 24 it was held that the City of Manila could not lease a portion of a public sidewalk on Plaza Sta. Cruz, being likewise beyond the commerce of man.chanroblesvirtualawlibrary chanrobles virtual law library Echoing Rojas, the decision said: Appellants claim that they had obtained permit from the present of the City of Manila, to connect booths Nos. 1 and 2, along the premises in question, and for the use of spaces where the booths were constructed, they had paid and continued paying the corresponding rentals. Granting this claim to be true, one should not entertain any doubt that such permit was not legal, because the City of Manila does not have any power or authority at all to lease a portion of a public sidewalk. The sidewalk in question, forming part of the public plaza of Sta. Cruz, could not be a proper subject matter of the contract, as it was not within the commerce of man (Article 1347, new Civil Code, and article 1271, old Civil Code). Any contract entered into by the City of Manila in connection with the sidewalk, is ipso facto null and ultra vires. (Municipality of Cavite vs. Roxas, et a1, 30 Phil. 603.) The sidewalk in question was intended for and was used by the public, in going from one place to another. "The streets and public places of the city shall be kept free and clear for the use of the public, and the sidewalks and crossings for the pedestrians, and the same shall only be used or occupied for other purpose as provided by ordinance or regulation; ..." (Sec. 1119, Revised Ordinances of the City of Manila.) The booths in question served as fruit stands for their owners and often, if not always, blocked the fire passage of pedestrians who had to take the plaza itself which used to be clogged with vehicular traffic. Exactly in point is Espiritu vs. Municipal Council of Pozorrubio, 25 where the Supreme Court declared: There is absolutely no question that the town plaza cannot be used for the construction of market stalls, specially of residences, and that such structures constitute a nuisance subject to abatement according to law. Town plazas are properties of public dominion, to be devoted to public use and to be made available to the public in general They are outside the common of man and cannot be disposed of or even leased by the municipality to private parties. Applying this well-settled doctrine, we rule that the petitioners had no right in the first place to occupy the disputed premises and cannot insist in remaining there now on the strength of their alleged lease contracts. They should have realized and accepted this earlier, considering that even before Civil Case No. 2040 was decided, the municipalcouncil of San Fernando had already adopted Resolution No. 29, series of 1964, declaring the area as the parking place and public plaza of the municipality.chanroblesvirtualawlibrary chanrobles virtual law library

It is the decision in Civil Case No. 2040 and the said resolution of the municipal council of San Fernando that respondent Macalino was seeking to enforce when he ordered the demolition of the stags constructed in the disputed area. As officer-in-charge of the office of the mayor, he had the duty to clear the area and restore it to its intended use as a parking place and public plaza of the municipality of San Fernando, conformably to the aforementioned orders from the court and the council. It is, therefore, not correct to say that he had acted without authority or taken the law into his hands in issuing his order.chanroblesvirtualawlibrary chanrobles virtual law library Neither can it be said that he acted whimsically in exercising his authority for it has been established that he directed the demolition of the stalls only after, upon his instructions, the municipal attorney had conducted an investigation, to look into the complaint filed by the Association of Concerned Citizens and Consumers of San Fernando. 26 There is evidence that the petitioners were notified of this hearing, 27 which they chose to disregard. Photographs of the disputed area, 28 which does look congested and ugly, show that the complaint was valid and that the area really needed to be cleared, as recommended by the municipal attorney.chanroblesvirtualawlibrary chanrobles virtual law library The Court observes that even without such investigation and recommendation, the respondent mayor was justified in ordering the area cleared on the strength alone of its status as a public plaza as declared by the judicial and legislative authorities. In calling first for the investigation (which the petitioner saw fit to boycott), he was just scrupulously paying deference to the requirements of due process, to remove an taint of arbitrariness in the action he was caged upon to take.chanroblesvirtualawlibrary chanrobles virtual law library Since the occupation of the place in question in 1961 by the original 24 stallholders (whose number later ballooned to almost 200), it has deteriorated increasingly to the great prejudice of the community in general. The proliferation of stags therein, most of them makeshift and of flammable materials, has converted it into a veritable fire trap, which, added to the fact that it obstructs access to and from the public market itself, has seriously endangered public safety. The filthy condition of the talipapa, where fish and other wet items are sold, has aggravated health and sanitation problems, besides pervading the place with a foul odor that has spread into the surrounding areas. The entire place is unsightly, to the dismay and embarrassment of the inhabitants, who want it converted into a showcase of the town of which they can all be proud. The vendors in the talipapa have also spilled into the street and obstruct the flow of traffic, thereby impairing the convenience of motorists and pedestrians alike. The regular stallholders in the public market, who pay substantial rentals to the municipality, are deprived of a sizable volume of business from prospective customers who are intercepted by the talipapa vendors before they can reach the market proper. On top of all these, the people are denied the proper use of the place as a public plaza, where they may spend their leisure in a relaxed and even beautiful environment and civic and other communal activities of the town can be held.chanroblesvirtualawlibrary chanrobles virtual law library The problems caused by the usurpation of the place by the petitioners are covered by the police power as delegated to the municipality under the general welfare clause. 29 This authorizes the municipal council "to enact such ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein." This authority was validly exercised in this

casethrough the adoption of Resolution No. 29, series of 1964, by the municipal council of San Fernando.chanroblesvirtualawlibrary chanrobles virtual law library Even assuming a valid lease of the property in dispute, the resolution could have effectively terminated the agreement for it is settled that the police power cannot be surrendered or bargained away through the medium of a contract. 30 In fact, every contract affecting the public interest suffers a congenital infirmity in that it contains an implied reservation of the police power as a postulate of the existing legal order. 31 This power can be activated at any time to change the provisions of the contract, or even abrogate it entirely, for the promotion or protection of the general welfare. Such an act will not militate against the impairment clause, which is subject to and limited by the paramount police power. 32 chanrobles virtual law library We hold that the respondent judge did not commit grave abuse of discretion in denying the petition for prohibition. On the contrary, he acted correctly in sustaining the right and responsibility of the mayor to evict the petitioners from the disputed area and clear it of an the structures illegally constructed therein.chanroblesvirtualawlibrary chanrobles virtual law library The Court feels that it would have been far more amiable if the petitioners themselves, recognizing their own civic duty, had at the outset desisted from their original stance and withdrawn in good grace from the disputed area to permit its peaceful restoration as a public plaza and parking place for the benefit of the whole municipality. They owned this little sacrifice to the community in general which has suffered all these many years because of their intransigence. Regrettably, they have refused to recognize that in the truly democratic society, the interests of the few should yield to those of the greater number in deference to the principles that the welfare of the people is the supreme law and overriding purpose. We do not see any altruism here. The traditional ties of sharing are absent here. What we find, sad to say, is a cynical disdaining of the spirit of "bayanihan," a selfish rejection of the cordial virtues of "pakikisama " and "pagbibigayan" which are the hallmarks of our people.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the petition is DISMISSED. The decision dated July 19, 1982, and the order-dated August 5, 1982, are AFFIRMED. The temporary restraining order dated August 9, 1982, is LIFTED. This decision is immediately executory. Costs against the petitioners.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. Teehankee, C.J., Narvasa and Paras, JJ., concur. Republic of the Philipppines SUPREME COURT Manila SECOND DIVISION [G.R. No. 144681.June 21, 2004] PROFESSIONAL REGULATION COMMISSION (PRC), CHAIRMAN HERMOGENES P. POBRE, ASSOCIATE COMMISSIONER ARMANDO PASCUAL, BOARD OF MEDICINE,

CHAIRMAN RODOLFO P. DE GUZMAN, JOSE S. RAMIREZ, JUANITO B. BILLOTE, RUBEN R. POLICARPIO, EDGARDO T. FERNANDO and RICARDO D. FULGENCIO II, petitioners, vs. ARLENE V. DE GUZMAN, VIOLETA V. MENESES, CELERINA S. NAVARRO, JOSE RAMONCITO P. NAVARRO, ARNEL V. HERRERA and GERALDINE ELIZABETH M. PAGILAGAN, ELNORA R. RAQUENO, MARISSA A. REGODON, LAURA M. SANTOS, KARANGALAN D. SERRANO, DANILO A. VILLAVER, MARIA ROSARIO L. LEONOR, ALICIA S. LIZANO, MARITEL M. ECHIVERRI, BERNADETTE T. MENDOZA, FERNANDO F. MANDAPAT, ALELI A. GOLLAYAN, ELCIN C. ARRIOLA, HERMINIGILDA E. CONEJOS, SALLY B. BUNAGAN, ROGELIO B. ANCHETA, OSCAR H. PADUA, JR., EVELYN D. GRAJO, EVELYN S. ACOSTA, MARGARITA BELINDA L. VICENCIO, VALENTINO P. ARBOLEDA, EVELYN O. RAMOS, ACHILLES J. PERALTA, CORAZON M. CRUZ, LEUVINA P. CHICO, JOSEPH A. JAO, MA. LUISA S. GUTIERREZ, LYDIA C. CHAN, OPHELIA C. HIDALGO, FERNANDO T. CRUZ, MELVIN M. USITA, RAFAEL I. TOLENTINO, GRACE E. UY, CHERYL R. TRIGUERO, MICHAEL L. SERRANO, FEDERICO L. CASTILLO, MELITA J. CAEDO, SAMUEL B. BANGOY, BERNARDITA B. SY, GLORIA T. JULARBAL, FREDERICK D. FRANCISCO, CARLOS M. BERNARDO, JR., HUBERT S. NAZARENO, CLARISSA B. BACLIG, DAYMINDA G. BONTUYAN, BERNADETTE H. CABUHAT, NANCY J. CHAVEZ, MARIO D. CUARESMA, ERNESTO L. CUE, EVELYN C. CUNDANGAN, RHONEIL R. DEVERATURDA, DERILEEN D. DORADO, SAIBZUR N. EDDING, VIOLETA C. FELIPE, HERMINIO V. FERNANDEZ, JR., MARIA VICTORIA M. LACSAMANA, NORMA G. LAFAVILLA, RUBY B. LANTIN, MA. ELOISA Q. MALLARI, CLARISA SJ. NICOLAS, PERCIVAL H. PANGILINAN, ARNULFO A. SALVADOR, ROBERT B. SANCHEZ, MERLY D. STA. ANA and YOLANDA P. UNICA, Respondents. DECISION TINGA, J.:chanroblesvirtuallawlibrary This petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeks to nullify the Decision,[1] dated May 16, 2000, of the Court of Appeals in CA-G.R. SP No. 37283.The appellate court affirmed the judgment[2] dated December 19, 1994, of the Regional Trial Court (RTC) of Manila, Branch 52, in Civil Case No. 93-66530. The trial court allowed the respondents to take their physicians oath and to register as duly licensed physicians. Equally challenged is the Resolution[3] promulgated on August 25, 2000 of the Court of Appeals, denying petitioners Motion for Reconsideration.chanroblesvirtuallawlibrary The facts of this case are as follows:chanroblesvirtuallawlibrary The respondents are all graduates of the Fatima College of Medicine, Valenzuela City, Metro Manila. They passed the Physician Licensure Examination conducted in February 1993 by the Board of Medicine (Board). Petitioner Professional Regulation Commission (PRC) then released their names as successful examinees in the medical licensure examination.chanroblesvirtuallawlibrary Shortly thereafter, the Board observed that the grades of the seventy-nine successful examinees from Fatima College in the two most difficult subjects in the medical licensure exam, Biochemistry (BioChem) and Obstetrics and Gynecology (OB-Gyne), were unusually and exceptionally high. Eleven Fatima examinees scored 100% in Bio-Chem and ten got 100% in OB-Gyne, another eleven got 99%

in Bio-Chem, and twenty-one scored 99% in OB-Gyne. The Board also observed that many of those who passed from Fatima got marks of 95% or better in both subjects, and no one got a mark lower than 90%. A comparison of the performances of the candidates from other schools was made. The Board observed that strangely, the unusually high ratings were true only for Fatima College examinees. It was a record-breaking phenomenon in the history of the Physician Licensure Examination.chanroblesvirtuallawlibrary On June 7, 1993, the Board issued Resolution No. 19, withholding the registration as physicians of all the examinees from the Fatima College of Medicine.[4] The PRC asked the National Bureau of Investigation (NBI) to investigate whether any anomaly or irregularity marred the February 1993 Physician Licensure Examination.chanroblesvirtuallawlibrary Prior to the NBI investigation, the Board requested Fr. Bienvenido F. Nebres, S.J., an expert mathematician and authority in statistics, and later president of the Ateneo de Manila University, to conduct a statistical analysis of the results in Bio-Chem and Ob-Gyne of the said examination.chanroblesvirtuallawlibrary On June 10, 1993, Fr. Nebres submitted his report.He reported that a comparison of the scores in BioChem and Ob-Gyne, of the Fatima College examinees with those of examinees from De La Salle University and Perpetual Help College of Medicine showed that the scores of Fatima College examinees were not only incredibly high but unusually clustered close to each other. He concluded that there must be some unusual reason creating the clustering of scores in the two subjects.It must be a cause strong enough to eliminate the normal variations that one should expect from the examinees [of Fatima College] in terms of talent, effort, energy, etc.[5]chanroblesvirtuallawlibrary For its part, the NBI found that the questionable passing rate of Fatima examinees in the [1993] Physician Examination leads to the conclusion that the Fatima examinees gained early access to the test questions.[6]chanroblesvirtuallawlibrary On July 5, 1993, respondents Arlene V. De Guzman, Violeta V. Meneses, Celerina S. Navarro, Jose Ramoncito P. Navarro, Arnel V. Herrera, and Geraldine Elizabeth M. Pagilagan (Arlene V. De Guzman et al., for brevity) filed a special civil action for mandamus, with prayer for preliminary mandatory injunction docketed as Civil Case No. 93-66530 with the Regional Trial Court (RTC) of Manila, Branch 52. Their petition was adopted by the other respondents as intervenors.chanroblesvirtuallawlibrary Meanwhile, the Board issued Resolution No. 26, dated July 21, 1993, charging respondents with immorality, dishonest conduct, fraud, and deceit in connection with the Bio-Chem and Ob-Gyne examinations.It recommended that the test results of the Fatima examinees be nullified. The case was docketed as Adm. Case No. 1687 by the PRC. chanroblesvirtuallawlibrary On July 28, 1993, the RTC issued an Order in Civil Case No. 93-66530 granting the preliminary mandatory injunction sought by the respondents.It ordered the petitioners to administer the physicians oath to Arlene V. De Guzman et al., and enter their names in the rolls of the PRC.chanroblesvirtuallawlibrary The petitioners then filed a special civil action for certiorari with the Court of Appeals to set aside the mandatory injunctive writ, docketed as CA-G.R. SP No. 31701. chanroblesvirtuallawlibrary

On October 21, 1993, the appellate court decided CA-G.R. SP No. 31701, with the dispositive portion of the Decision ordaining as follows:chanroblesvirtuallawlibrary WHEREFORE, this petition is GRANTED. Accordingly, the writ of preliminary mandatory injunction issued by the lower court against petitioners is hereby nullified and set aside.chanroblesvirtuallawlibrary SO ORDERED.[7]chanroblesvirtuallawlibrary Arlene V. de Guzman, et al., then elevated the foregoing Decision to this Court in G.R. No. 112315.In our Resolution dated May 23, 1994, we denied the petition for failure to show reversible error on the part of the appellate court.chanroblesvirtuallawlibrary Meanwhile, on November 22, 1993, during the pendency of the instant petition, the pre-trial conference in Civil Case No. 93-66530 was held. Then, the parties, agreed to reduce the testimonies of their respective witnesses to sworn questions-and-answers. This was without prejudice to cross-examination by the opposing counsel.chanroblesvirtuallawlibrary On December 13, 1993, petitioners counsel failed to appear at the trial in the mistaken belief that the trial was set for December 15. The trial court then ruled that petitioners waived their right to crossexamine the witnesses.chanroblesvirtuallawlibrary On January 27, 1994, counsel for petitioners filed a Manifestation and Motion stating the reasons for her non-appearance and praying that the cross-examination of the witnesses for the opposing parties be reset. The trial court denied the motion for lack of notice to adverse counsel.It also denied the Motion for Reconsideration that followed on the ground that adverse counsel was notified less than three (3) days prior to the hearing.chanroblesvirtuallawlibrary Meanwhile, to prevent the PRC and the Board from proceeding with Adm. Case No. 1687, the respondents herein moved for the issuance of a restraining order, which the lower court granted in its Order dated April 4, 1994.chanroblesvirtuallawlibrary The petitioners then filed with this Court a petition for certiorari docketed as G.R. No. 115704, to annul the Orders of the trial court dated November 13, 1993, February 28, 1994, and April 4, 1994.We referred the petition to the Court of Appeals where it was docketed as CA-G.R. SP No. 34506.chanroblesvirtuallawlibrary On August 31, 1994, the appellate court decided CA-G.R. SP No. 34506 as follows:chanroblesvirtuallawlibrary WHEREFORE, the present petition for certiorari with prayer for temporary restraining order/preliminary injunction is GRANTED and the Orders of December 13, 1993, February 7, 1994, February 28, 1994, and April 4, 1994 of the RTC-Manila, Branch 52, and all further proceedings taken by it in Special Civil Action No. 93-66530 are hereby DECLARED NULL and VOID. The said RTCManila is ordered to allow petitioners counsel to cross-examine the respondents witnesses, to allow petitioners to present their evidence in due course of trial, and thereafter to decide the case on the merits on the basis of the evidence of the parties. Costs against respondents.chanroblesvirtuallawlibrary

IT IS SO ORDERED.[8]chanroblesvirtuallawlibrary The trial was then set and notices were sent to the parties.chanroblesvirtuallawlibrary A day before the first hearing, on September 22, 1994, the petitioners filed an Urgent Ex-Parte Manifestation and Motion praying for the partial reconsideration of the appellate courts decision in CA-G.R. SP No. 34506, and for the outright dismissal of Civil Case No. 93-66530. The petitioners asked for the suspension of the proceedings.chanroblesvirtuallawlibrary In its Order dated September 23, 1994, the trial court granted the aforesaid motion, cancelled the scheduled hearing dates, and reset the proceedings to October 21 and 28, 1994.chanroblesvirtuallawlibrary Meanwhile, on October 25, 1994, the Court of Appeals denied the partial motion for reconsideration in CA-G.R. SP No. 34506.Thus, petitioners filed with the Supreme Court a petition for review docketed as G.R. No. 117817, entitled Professional Regulation Commission, et al. v. Court of Appeals, et al.chanroblesvirtuallawlibrary On November 11, 1994, counsel for the petitioners failed to appear at the trial of Civil Case No. 9366530. Upon motion of the respondents herein, the trial court ruled that herein petitioners waived their right to cross-examine the herein respondents. Trial was reset to November 28, 1994.chanroblesvirtuallawlibrary On November 25, 1994, petitioners counsel moved for the inhibition of the trial court judge for alleged partiality. On November 28, 1994, the day the Motion to Inhibit was to be heard, petitioners failed to appear.Thus, the trial court denied the Motion to Inhibit and declared Civil Case No. 93-66530 deemed submitted for decision. chanroblesvirtuallawlibrary On December 19, 1994, the trial court handed down its judgment in Civil Case No. 93-66530, the fallo of which reads:chanroblesvirtuallawlibrary WHEREFORE, judgment is rendered ordering the respondents to allow the petitioners and intervenors (except those with asterisks and footnotes in pages 1 & 2 of this decision) [sic],[9]to take the physicians oath and to register them as physicians.chanroblesvirtuallawlibrary It should be made clear that this decision is without prejudice to any administrative disciplinary action which may be taken against any of the petitioners for such causes and in the manner provided by law and consistent with the requirements of the Constitution as any other professionals.chanroblesvirtuallawlibrary No costs.chanroblesvirtuallawlibrary SO ORDERED.[10]chanroblesvirtuallawlibrary As a result of these developments, petitioners filed with this Court a petition for review on certiorari docketed as G.R. No. 118437, entitled Professional Regulation Commission v. Hon. David G. Nitafan, praying inter alia, that (1) G.R. No. 118437 be consolidated with G.R. No. 117817; (2) the decision of the Court of Appeals dated August 31, 1994 in CA-G.R. SP No. 34506 be nullified for its failure to

decree the dismissal of Civil Case No. 93-66530, and in the alternative, to set aside the decision of the trial court in Civil Case No. 93-66530, order the trial court judge to inhibit himself, and Civil Case No. 93-66530 be re-raffled to another branch.chanroblesvirtuallawlibrary On December 26, 1994, the petitioners herein filed their Notice of Appeal[11] in Civil Case No. 9366530, thereby elevating the case to the Court of Appeals, where it was docketed as CA-G.R. SP No. 37283.chanroblesvirtuallawlibrary In our Resolution of June 7, 1995, G.R. No. 118437 was consolidated with G.R. No. 117817.chanroblesvirtuallawlibrary On July 9, 1998, we disposed of G.R. Nos. 117817 and 118437 in this wise:chanroblesvirtuallawlibrary WHEREFORE, the petition in G.R. No. 117817 is DISMISSED for being moot. The petition in G.R. No. 118437 is likewise DISMISSED on the ground that there is a pending appeal before the Court of Appeals. Assistant Solicitor General Amparo M. Cabotaje-Tang is advised to be more circumspect in her dealings with the courts as a repetition of the same or similar acts will be dealt with accordingly.chanroblesvirtuallawlibrary SO ORDERED.[12]chanroblesvirtuallawlibrary While CA-G.R. SP No. 37283 was awaiting disposition by the appellate court, Arnel V. Herrera, one of the original petitioners in Civil Case No. 93-66530, joined by twenty-seven intervenors, to wit: Fernando F. Mandapat, Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno-Rabaino, Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario L. Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-Palma, Margarita Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose Ramoncito P. Navarro, manifested that they were no longer interested in proceeding with the case and moved for its dismissal. A similar manifestation and motion was later filed by intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabara, Yolanda P. Unica, Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D. Francisco, Violeta V. Meneses, Melita J. Caedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. The Court of Appeals ruled that its decision in CA-G.R. SP No. 37283 would not apply to them.chanroblesvirtuallawlibrary On May 16, 2000, the Court of Appeals decided CA-G.R. SP No. 37283, with the following fallo, to wit:chanroblesvirtuallawlibrary WHEREFORE, finding no reversible error in the decision appealed from, We hereby AFFIRM the same and DISMISS the instant appeal.chanroblesvirtuallawlibrary No pronouncement as to costs.chanroblesvirtuallawlibrary SO ORDERED.[13]chanroblesvirtuallawlibrary

In sustaining the trial courts decision, the appellate court ratiocinated that the respondents complied with all the statutory requirements for admission into the licensure examination for physicians in February 1993. They all passed the said examination. Having fulfilled the requirements of Republic Act No. 2382,[14] they should be allowed to take their oaths as physicians and be registered in the rolls of the PRC.chanroblesvirtuallawlibrary Hence, this petition raising the following issues: Ichanroblesvirtuallawlibrary WHETHER OR NOT RESPONDENTS HAVE A VALID CAUSE OF ACTION FOR MANDAMUS AGAINST PETITIONERS IN THE LIGHT OF THE RESOLUTION OF THIS HONORABLE COURT IN G.R. NO. 112315 AFFIRMING THE COURT OF APPEALS DECISION DECLARING THAT IF EVER THERE IS SOME DOUBT AS TO THE MORAL FITNESS OF EXAMINEES, THE ISSUANCE OF LICENSE TO PRACTICE MEDICINE IS NOT AUTOMATICALLY GRANTED TO THE SUCCESSFUL EXAMINEES. IIchanroblesvirtuallawlibrary WHETHER OR NOT THE PETITION FOR MANDAMUS COULD PROCEED DESPITE THE PENDENCY OF ADMINISTRATIVE CASE NO. 1687, WHICH WAS PRECISELY LODGED TO DETERMINE THE MORAL FITNESS OF RESPONDENTS TO BECOME DOCTORS.[15]chanroblesvirtuallawlibrary To our mind, the only issue is: Did the Court of Appeals commit a reversible error of law in sustaining the judgment of the trial court that respondents are entitled to a writ of mandamus?chanroblesvirtuallawlibrary The petitioners submit that a writ of mandamus will not lie in this case. They point out that for a writ of mandamus to issue, the applicant must have a well-defined, clear and certain legal right to the thing demanded and it is the duty of the respondent to perform the act required. Thus, mandamus may be availed of only when the duty sought to be performed is a ministerial and not a discretionary one. The petitioners argue that the appellate courts decision in CA-G.R. SP No. 37283 upholding the decision of the trial court in Civil Case No. 93-66530 overlooked its own pronouncement in CA-G.R. SP No. 31701. The Court of Appeals held in CA-G.R. SP No. 31701 that the issuance of a license to engage in the practice of medicine becomes discretionary on the PRC if there exists some doubt that the successful examinee has not fully met the requirements of the law. The petitioners stress that this Courts Resolution dated May 24, 1994 in G.R. No. 112315 held that there was no showing that the Court of Appeals had committed any reversible error in rendering the questioned judgment in CA-G.R. SP No. 31701. The petitioners point out that our Resolution in G.R. No. 112315 has long become final and executory.chanroblesvirtuallawlibrary Respondents counter that having passed the 1993 licensure examinations for physicians, the petitioners have the obligation to administer to them the oath as physicians and to issue their certificates of registration as physicians pursuant to Section 20[16] of Rep. Act No. 2382. The Court of Appeals in CA-G.R. SP No. 37283, found that respondents complied with all the requirements of Rep. Act No. 2382.Furthermore, respondents were admitted by the Medical Board to the licensure examinations and

had passed the same. Hence, pursuant to Section 20 of Rep. Act No. 2382, the petitioners had the obligation to administer their oaths as physicians and register them.chanroblesvirtuallawlibrary Mandamus is a command issuing from a court of competent jurisdiction, in the name of the state or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law.[17] Section 3 of Rule 65[18] of the 1997 Rules of Civil Procedure outlines two situations when a writ of mandamus may issue, when any tribunal, corporation, board, officer or person unlawfully (1) neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station; or (2) excludes another from the use and enjoyment of a right or office to which the other is entitled.chanroblesvirtuallawlibrary We shall discuss the issues successively.chanroblesvirtuallawlibrary 1.On The Existence of a Duty of the Board of Medicine To Issue Certificates of Registration as Physicians under Rep. Act No. 2382.chanroblesvirtuallawlibrary For mandamus to prosper, there must be a showing that the officer, board, or official concerned, has a clear legal duty, not involving discretion.[19] Moreover, there must be statutory authority for the performance of the act,[20] and the performance of the duty has been refused.[21] Thus, it must be pertinently asked now: Did petitioners have the duty to administer the Hippocratic Oath and register respondents as physicians under the Medical Act of 1959?chanroblesvirtuallawlibrary As found by the Court of Appeals, on which we agree on the basis of the records:chanroblesvirtuallawlibrary It bears emphasizing herein that petitioner-appellees and intervenor-appellees have fully complied with all the statutory requirements for admission into the licensure examinations for physicians conducted and administered by the respondent-appellants on February 12, 14, 20 and 21, 1993. Stress, too, must be made of the fact that all of them successfully passed the same examinations.[22]chanroblesvirtuallawlibrary The crucial query now is whether the Court of Appeals erred in concluding that petitioners should allow the respondents to take their oaths as physicians and register them, steps which would enable respondents to practice the medical profession[23] pursuant to Section 20 of the Medical Act of 1959?chanroblesvirtuallawlibrary The appellate court relied on a single provision, Section 20 of Rep. Act No. 2382, in concluding that the petitioners had the ministerial obligation to administer the Hippocratic Oath to respondents and register them as physicians. But it is a basic rule in statutory construction that each part of a statute should be construed in connection with every other part to produce a harmonious whole, not confining construction to only one section.[24] The intent or meaning of the statute should be ascertained from the statute taken as a whole, not from an isolated part of the provision. Accordingly, Section 20 of Rep. Act No. 2382, as amended should be read in conjunction with the other provisions of the Act. Thus, to determine whether the petitioners had the ministerial obligation to administer the Hippocratic Oath to respondents and register them as physicians, recourse must be had to the entirety of the Medical Act of 1959.chanroblesvirtuallawlibrary

A careful reading of Section 20 of the Medical Act of 1959 discloses that the law uses the word shall with respect to the issuance of certificates of registration.Thus, the petitioners shall sign and issue certificates of registration to those who have satisfactorily complied with the requirements of the Board. In statutory construction the term shall is a word of command.It is given imperative meaning. Thus, when an examinee satisfies the requirements for the grant of his physicians license, the Board is obliged to administer to him his oath and register him as a physician, pursuant to Section 20 and par. (1) of Section 22[25] of the Medical Act of 1959.chanroblesvirtuallawlibrary However, the surrounding circumstances in this case call for serious inquiry concerning the satisfactory compliance with the Board requirements by the respondents.The unusually high scores in the two most difficult subjects was phenomenal, according to Fr. Nebres, the consultant of PRC on the matter, and raised grave doubts about the integrity, if not validity, of the tests. These doubts have to be appropriately resolved.chanroblesvirtuallawlibrary Under the second paragraph of Section 22, the Board is vested with the power to conduct administrative investigations and disapprove applications for examination or registration, pursuant to the objectives of Rep. Act No. 2382 as outlined in Section 1[26] thereof. In this case, after the investigation, the Board filed before the PRC, Adm. Case No. 1687 against the respondents to ascertain their moral and mental fitness to practice medicine, as required by Section 9[27] of Rep. Act No. 2382. In its Decision dated July 1, 1997, the Board ruled:chanroblesvirtuallawlibrary WHEREFORE, the BOARD hereby CANCELS the respondents[] examination papers in the Physician Licensure Examinations given in February 1993 and further DEBARS them from taking any licensure examination for a period of ONE (1) YEAR from the date of the promulgation of this DECISION. They may, if they so desire, apply for the scheduled examinations for physicians after the lapse of the period imposed by the BOARD.chanroblesvirtuallawlibrary SO ORDERED.[28]chanroblesvirtuallawlibrary Until the moral and mental fitness of the respondents could be ascertained, according to Petitioners, the Board has discretion to hold in abeyance the administration of the Hippocratic Oath and the issuance of the certificates to them. The writ of mandamus does not lie to compel performance of an act which is not duly authorized.chanroblesvirtuallawlibrary The respondents nevertheless argue that under Section 20, the Board shall not issue a certificate of registration only in the following instances: (1) to any candidate who has been convicted by a court of competent jurisdiction of any criminal offense involving moral turpitude; (2) or has been found guilty of immoral or dishonorable conduct after the investigation by the Board; or (3) has been declared to be of unsound mind.They aver that none of these circumstances are present in their case.chanroblesvirtuallawlibrary Petitioners reject respondents argument.We are informed that in Board Resolution No. 26,[29] dated July 21, 1993, the Board resolved to file charges against the examinees from Fatima College of Medicine for immorality, dishonesty, fraud, and deceit in the Obstetrics-Gynecology and Biochemistry examinations. It likewise sought to cancel the examination results obtained by the examinees from the Fatima College.chanroblesvirtuallawlibrary

Section 8[30] of Rep. Act No. 2382 prescribes, among others, that a person who aspires to practice medicine in the Philippines, must have satisfactorily passed the corresponding Board Examination. Section 22, in turn, provides that the oath may only be administered to physicians who qualified in the examinations. The operative word here is satisfactorily, defined as sufficient to meet a condition or obligation or capable of dispelling doubt or ignorance.[31] Gleaned from Board Resolution No. 26, the licensing authority apparently did not find that the respondents satisfactorily passed the licensure examinations. The Board instead sought to nullify the examination results obtained by the respondents. chanroblesvirtuallawlibrary 2.On the Right Of The Respondents To Be Registered As Physicianschanroblesvirtuallawlibrary The function of mandamus is not to establish a right but to enforce one that has been established by law. If no legal right has been violated, there can be no application of a legal remedy, and the writ of mandamus is a legal remedy for a legal right.[32] There must be a well-defined, clear and certain legal right to the thing demanded.[33] It is long established rule that a license to practice medicine is a privilege or franchise granted by the government.[34] chanroblesvirtuallawlibrary It is true that this Court has upheld the constitutional right[35] of every citizen to select a profession or course of study subject to a fair, reasonable, and equitable admission and academic requirements.[36] But like all rights and freedoms guaranteed by the Charter, their exercise may be so regulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety, and general welfare of the people.[37] Thus, persons who desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers.This regulation takes particular pertinence in the field of medicine, to protect the public from the potentially deadly effects of incompetence and ignorance among those who would practice medicine.In a previous case, it may be recalled, this Court has ordered the Board of Medical Examiners to annul both its resolution and certificate authorizing a Spanish subject, with the degree of Licentiate in Medicine and Surgery from the University of Barcelona, Spain, to practice medicine in the Philippines, without first passing the examination required by the Philippine Medical Act.[38] In another case worth noting, we upheld the power of the State to upgrade the selection of applicants into medical schools through admission tests.[39]chanroblesvirtuallawlibrary It must be stressed, nevertheless, that the power to regulate the exercise of a profession or pursuit of an occupation cannot be exercised by the State or its agents in an arbitrary, despotic, or oppressive manner. A political body that regulates the exercise of a particular privilege has the authority to both forbid and grant such privilege in accordance with certain conditions.Such conditions may not, however, require giving up ones constitutional rights as a condition to acquiring the license.[40] Under the view that the legislature cannot validly bestow an arbitrary power to grant or refuse a license on a public agency or officer, courts will generally strike down license legislation that vests in public officials discretion to grant or refuse a license to carry on some ordinarily lawful business, profession, or activity without prescribing definite rules and conditions for the guidance of said officials in the exercise of their power.[41]chanroblesvirtuallawlibrary In the present case, the aforementioned guidelines are provided for in Rep. Act No. 2382, as amended, which prescribes the requirements for admission to the practice of medicine, the qualifications of candidates for the board examinations, the scope and conduct of the examinations, the grounds for denying the issuance of a physicians license, or revoking a license that has been issued. Verily, to be granted the privilege to practice medicine, the applicant must show that he possesses all the

qualifications and none of the disqualifications.Furthermore, it must appear that he has fully complied with all the conditions and requirements imposed by the law and the licensing authority. Should doubt taint or mar the compliance as being less than satisfactory, then the privilege will not issue. For said privilege is distinguishable from a matter of right, which may be demanded if denied. Thus, without a definite showing that the aforesaid requirements and conditions have been satisfactorily met, the courts may not grant the writ of mandamus to secure said privilege without thwarting the legislative will.chanroblesvirtuallawlibrary 3.On the Ripeness of the Petition for Mandamuschanroblesvirtuallawlibrary Lastly, the petitioners herein contend that the Court of Appeals should have dismissed the petition for mandamus below for being premature.They argue that the administrative remedies had not been exhausted. The records show that this is not the first time that petitioners have sought the dismissal of Civil Case No. 93-66530. This issue was raised in G.R. No. 115704, which petition we referred to the Court of Appeals, where it was docketed as CA-G.R. SP No. 34506. On motion for reconsideration in CA-G.R. SP No. 34506, the appellate court denied the motion to dismiss on the ground that the prayers for the nullification of the order of the trial court and the dismissal of Civil Case No. 93-66530 were inconsistent reliefs. In G.R. No. 118437, the petitioners sought to nullify the decision of the Court of Appeals in CA-G.R. SP No. 34506 insofar as it did not order the dismissal of Civil Case No. 93-66530. In our consolidated decision, dated July 9, 1998, in G.R. Nos. 117817 & 118437, this Court speaking through Justice Bellosillo opined that:chanroblesvirtuallawlibrary Indeed, the issue as to whether the Court of Appeals erred in not ordering the dismissal of Civil Case No. 93-66530 sought to be resolved in the instant petition has been rendered meaningless by an event taking place prior to the filing of this petition and denial thereof should follow as a logical consequence.[42]There is no longer any justiciable controversy so that any declaration thereon would be of no practical use or value.[43]It should be recalled that in its decision of 19 December 1994 the trial court granted the writ of mandamus prayed for by private respondents, which decision was received by petitioners on 20 December 1994. Three (3) days after, or on 23 December 1994, petitioners filed the instant petition. By then, the remedy available to them was to appeal the decision to the Court of Appeals, which they in fact did, by filing a notice of appeal on 26 December 1994.[44]chanroblesvirtuallawlibrary The petitioners have shown no cogent reason for us to reverse the aforecited ruling. Nor will their reliance upon the doctrine of the exhaustion of administrative remedies in the instant case advance their cause any.chanroblesvirtuallawlibrary Section 26[45] of the Medical Act of 1959 provides for the administrative and judicial remedies that respondents herein can avail to question Resolution No. 26 of the Board of Medicine, namely: (a) appeal the unfavorable judgment to the PRC; (b) should the PRC ruling still be unfavorable, to elevate the matter on appeal to the Office of the President; and (c) should they still be unsatisfied, to ask for a review of the case or to bring the case to court via a special civil action of certiorari.Thus, as a rule, mandamus will not lie when administrative remedies are still available.[46] However, the doctrine of exhaustion of administrative remedies does not apply where, as in this case, a pure question of law is raised.[47] On this issue, no reversible error may, thus, be laid at the door of the appellate court in CAG.R. SP No. 37283, when it refused to dismiss Civil Case No. 93-66530.chanroblesvirtuallawlibrary

As we earlier pointed out, herein respondents Arnel V. Herrera, Fernando F. Mandapat, Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno-Rabaino, Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-Palma, Margarita Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C. ArriolaOcampo, and Jose Ramoncito P. Navarro manifested to the Court of Appeals during the pendency of CA-G.R. SP No. 37283, that they were no longer interested in proceeding with the case and moved for its dismissal insofar as they were concerned. A similar manifestation and motion were later filed by intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabarra, Yolanda P. Unica, Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D. Francisco, Violeta V. Meneses, Melita J. Caedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. Following these manifestations and motions, the appellate court in CA-G.R. SP No. 37283 decreed that its ruling would not apply to them. Thus, inasmuch as the instant case is a petition for review of the appellate courts ruling in CAG.R. SP No. 37283, a decision which is inapplicable to the aforementioned respondents will similarly not apply to them.chanroblesvirtuallawlibrary As to Achilles J. Peralta, Evelyn O. Ramos, Sally B. Bunagan, Rogelio B. Ancheta, Oscar H. Padua, Jr., Evelyn D. Grajo, Valentino P. Arboleda, Carlos M. Bernardo, Jr., Mario D. Cuaresma, Violeta C. Felipe, Percival H. Pangilinan, Corazon M. Cruz and Samuel B. Bangoy, herein decision shall not apply pursuant to the Orders of the trial court in Civil Case No. 93-66530, dropping their names from the suit.chanroblesvirtuallawlibrary Consequently, this Decision is binding only on the remaining respondents, namely: Arlene V. de Guzman, Celerina S. Navarro, Rafael I. Tolentino, Bernardita B. Sy, Gloria T. Jularbal, Hubert S. Nazareno, Nancy J. Chavez, Ernesto L. Cue, Herminio V. Fernandez, Jr., Maria Victoria M. Lacsamana and Merly D. Sta. Ana, as well as the petitioners.chanroblesvirtuallawlibrary WHEREFORE, the instant petition is GRANTED.Accordingly,(1) the assailed decision dated May 16, 2000, of the Court of Appeals, in CA-G.R. SP No. 37283, which affirmed the judgment dated December 19, 1994, of the Regional Trial Court of Manila, Branch 52, in Civil Case No. 93-66530, ordering petitioners to administer the physicians oath to herein respondents as well as the resolution dated August 25, 2000, of the appellate court, denying the petitioners motion for reconsideration, are REVERSED and SET ASIDE;and (2) the writ of mandamus, issued in Civil Case No. 93-66530, and affirmed by the appellate court in CA-G.R. SP No. 37283 is NULLIFIED AND SET ASIDE.chanroblesvirtuallawlibrary SO ORDERED.chanroblesvirtuallawlibrary Puno, (Chairman), and Callejo, Sr., JJ., concur.chanroblesvirtuallawlibrary Quisumbing, J., no part.chanroblesvirtuallawlibrary Austria-Martinez, J., no part - on leave.

DIDIPIO VS GOZUN DECISION CHICO-NAZARIO, J.: This petition for prohibition and mandamus under Rule 65 of the Rules of Court assails the constitutionality of Republic Act No. 7942 otherwise known as the Philippine Mining Act of 1995, together with the Implementing Rules and Regulations issued pursuant thereto, Department of Environment and Natural Resources (DENR) Administrative Order No. 96-40, s. 1996 (DAO 96-40) and of the Financial and Technical Assistance Agreement (FTAA) entered into on 20 June 1994 by the Republic of the Philippines and Arimco Mining Corporation (AMC), a corporation established under the laws of Australia and owned by its nationals. On 25 July 1987, then President Corazon C. Aquino promulgated Executive Order No. 279 which authorized the DENR Secretary to accept, consider and evaluate proposals from foreign-owned corporations or foreign investors for contracts of agreements involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, which, upon appropriate recommendation of the Secretary, the President may execute with the foreign proponent. On 3 March 1995, then President Fidel V. Ramos signed into law Rep. Act No. 7942 entitled, "An Act Instituting A New System of Mineral Resources Exploration, Development, Utilization and Conservation," otherwise known as the Philippine Mining Act of 1995. On 15 August 1995, then DENR Secretary Victor O. Ramos issued DENR Administrative Order (DAO) No. 23, Series of 1995, containing the implementing guidelines of Rep. Act No. 7942. This was soon superseded by DAO No. 96-40, s. 1996, which took effect on 23 January 1997 after due publication. Previously, however, or specifically on 20 June 1994, President Ramos executed an FTAA with AMC over a total land area of 37,000 hectares covering the provinces of Nueva Vizcaya and Quirino. Included in this area is Barangay Dipidio, Kasibu, Nueva Vizcaya. Subsequently, AMC consolidated with Climax Mining Limited to form a single company that now goes under the new name of Climax-Arimco Mining Corporation (CAMC), the controlling 99% of stockholders of which are Australian nationals. On 7 September 2001, counsels for petitioners filed a demand letter addressed to then DENR Secretary Heherson Alvarez, for the cancellation of the CAMC FTAA for the primary reason that Rep. Act No. 7942 and its Implementing Rules and Regulations DAO 96-40 are unconstitutional. The Office of the Executive Secretary was also furnished a copy of the said letter. There being no response to both letters, another letter of the same content dated 17 June 2002 was sent to President Gloria Macapagal Arroyo. This letter was indorsed to the DENR Secretary and eventually referred to the Panel of

Arbitrators of the Mines and Geosciences Bureau (MGB), Regional Office No. 02, Tuguegarao, Cagayan, for further action. On 12 November 2002, counsels for petitioners received a letter from the Panel of Arbitrators of the MGB requiring the petitioners to comply with the Rules of the Panel of Arbitrators before the letter may be acted upon. Yet again, counsels for petitioners sent President Arroyo another demand letter dated 8 November 2002. Said letter was again forwarded to the DENR Secretary who referred the same to the MGB, Quezon City. In a letter dated 19 February 2003, the MGB rejected the demand of counsels for petitioners for the cancellation of the CAMC FTAA.1avvphil.net Petitioners thus filed the present petition for prohibition and mandamus, with a prayer for a temporary restraining order. They pray that the Court issue an order: 1. enjoining public respondents from acting on any application for FTAA; 2. declaring unconstitutional the Philippine Mining Act of 1995 and its Implementing Rules and Regulations; 3. canceling the FTAA issued to CAMC. In their memorandum petitioners pose the following issues: I Whether or not Republic Act No. 7942 and the CAMC FTAA are void because they allow the unjust and unlawful taking of property without payment of just compensation , in violation of Section 9, Article III of the Constitution. II Whether or not the Mining Act and its Implementing Rules and Regulations are void and unconstitutional for sanctioning an unconstitutional administrative process of determining just compensation. III Whether or not the State, through Republic Act No. 7942 and the CAMC FTAA, abdicated its primary responsibility to the full control and supervision over natural resources. IV Whether or not the respondents interpretation of the role of wholly foreign and foreign-owned corporations in their involvement in mining enterprises, violates paragraph 4, section 2, Article XII of the Constitution.

V WHETHER OR NOT THE 1987 CONSTITUTION PROHIBITS SERVICE CONTRACTS.1 Before going to the substantive issues, the procedural question raised by public respondents shall first be dealt with. Public respondents are of the view that petitioners eminent domain claim is not ripe for adjudication as they fail to allege that CAMC has actually taken their properties nor do they allege that their property rights have been endangered or are in danger on account of CAMCs FTAA. In effect, public respondents insist that the issue of eminent domain is not a justiciable controversy which this Court can take cognizance of. A justiciable controversy is defined as a definite and concrete dispute touching on the legal relations of parties having adverse legal interests which may be resolved by a court of law through the application of a law.2 Thus, courts have no judicial power to review cases involving political questions and as a rule, will desist from taking cognizance of speculative or hypothetical cases, advisory opinions and cases that have become moot.3 The Constitution is quite explicit on this matter.4 It provides that judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable. Pursuant to this constitutional mandate, courts, through the power of judicial review, are to entertain only real disputes between conflicting parties through the application of law. For the courts to exercise the power of judicial review, the following must be extant (1) there must be an actual case calling for the exercise of judicial power; (2) the question must be ripe for adjudication; and (3) the person challenging must have the "standing."5 An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute.6 There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence. Closely related to the second requisite is that the question must be ripe for adjudication. A question is considered ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it.7 The third requisite is legal standing or locus standi. It is defined as a personal or substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged, alleging more than a generalized grievance.8 The gist of the question of standing is whether a party alleges "such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions."9 Unless a person is injuriously affected in any of his constitutional rights by the operation of statute or ordinance, he has no standing.10 In the instant case, there exists a live controversy involving a clash of legal rights as Rep. Act No. 7942 has been enacted, DAO 96-40 has been approved and an FTAAs have been entered into. The FTAA holders have already been operating in various provinces of the country. Among them is CAMC which operates in the provinces of Nueva Vizcaya and Quirino where numerous individuals including the

petitioners are imperiled of being ousted from their landholdings in view of the CAMC FTAA. In light of this, the court cannot await the adverse consequences of the law in order to consider the controversy actual and ripe for judicial intervention.11 Actual eviction of the land owners and occupants need not happen for this Court to intervene. As held in Pimentel, Jr. v. Hon. Aguirre12: By the mere enactment of the questioned law or the approval of the challenged act, the dispute is said to have ripened into a judicial controversy even without any other overt act. Indeed, even a singular violation of the Constitution and/or the law is enough to awaken judicial duty.13 Petitioners embrace various segments of the society. These include Didipio Earth-Savers MultiPurpose Association, Inc., an organization of farmers and indigenous peoples organized under Philippine laws, representing a community actually affected by the mining activities of CAMC, as well as other residents of areas affected by the mining activities of CAMC. These petitioners have the standing to raise the constitutionality of the questioned FTAA as they allege a personal and substantial injury.14 They assert that they are affected by the mining activities of CAMC. Likewise, they are under imminent threat of being displaced from their landholdings as a result of the implementation of the questioned FTAA. They thus meet the appropriate case requirement as they assert an interest adverse to that of respondents who, on the other hand, claim the validity of the assailed statute and the FTAA of CAMC. Besides, the transcendental importance of the issues raised and the magnitude of the public interest involved will have a bearing on the countrys economy which is to a greater extent dependent upon the mining industry. Also affected by the resolution of this case are the proprietary rights of numerous residents in the mining contract areas as well as the social existence of indigenous peoples which are threatened. Based on these considerations, this Court deems it proper to take cognizance of the instant petition. Having resolved the procedural question, the constitutionality of the law under attack must be addressed squarely. First Substantive Issue: Validity of Section 76 of Rep. Act No. 7942 and DAO 96-40 In seeking to nullify Rep. Act No. 7942 and its implementing rules DAO 96-40 as unconstitutional, petitioners set their sight on Section 76 of Rep. Act No. 7942 and Section 107 of DAO 96-40 which they claim allow the unlawful and unjust "taking" of private property for private purpose in contradiction with Section 9, Article III of the 1987 Constitution mandating that private property shall not be taken except for public use and the corresponding payment of just compensation. They assert that public respondent DENR, through the Mining Act and its Implementing Rules and Regulations, cannot, on its own, permit entry into a private property and allow taking of land without payment of just compensation. Interpreting Section 76 of Rep. Act No. 7942 and Section 107 of DAO 96-40, juxtaposed with the concept of taking of property for purposes of eminent domain in the case of Republic v. Vda. de

Castellvi,15 petitioners assert that there is indeed a "taking" upon entry into private lands and concession areas. Republic v. Vda. de Castellvi defines "taking" under the concept of eminent domain as entering upon private property for more than a momentary period, and, under the warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as to substantially oust the owner and deprive him of all beneficial enjoyment thereof. From the criteria set forth in the cited case, petitioners claim that the entry into a private property by CAMC, pursuant to its FTAA, is for more than a momentary period, i.e., for 25 years, and renewable for another 25 years; that the entry into the property is under the warrant or color of legal authority pursuant to the FTAA executed between the government and CAMC; and that the entry substantially ousts the owner or possessor and deprives him of all beneficial enjoyment of the property. These facts, according to the petitioners, amount to taking. As such, petitioners question the exercise of the power of eminent domain as unwarranted because respondents failed to prove that the entry into private property is devoted for public use. Petitioners also stress that even without the doctrine in the Castellvi case, the nature of the mining activity, the extent of the land area covered by the CAMC FTAA and the various rights granted to the proponent or the FTAA holder, such as (a) the right of possession of the Exploration Contract Area, with full right of ingress and egress and the right to occupy the same; (b) the right not to be prevented from entry into private lands by surface owners and/or occupants thereof when prospecting, exploring and exploiting for minerals therein; (c) the right to enjoy easement rights, the use of timber, water and other natural resources in the Exploration Contract Area; (d) the right of possession of the Mining Area, with full right of ingress and egress and the right to occupy the same; and (e) the right to enjoy easement rights, water and other natural resources in the Mining Area, result in a taking of private property. Petitioners quickly add that even assuming arguendo that there is no absolute, physical taking, at the very least, Section 76 establishes a legal easement upon the surface owners, occupants and concessionaires of a mining contract area sufficient to deprive them of enjoyment and use of the property and that such burden imposed by the legal easement falls within the purview of eminent domain. To further bolster their claim that the legal easement established is equivalent to taking, petitioners cite the case of National Power Corporation v. Gutierrez16 holding that the easement of right-of-way imposed against the use of the land for an indefinite period is a taking under the power of eminent domain. Traversing petitioners assertion, public respondents argue that Section 76 is not a taking provision but a valid exercise of the police power and by virtue of which, the state may prescribe regulations to promote the health, morals, peace, education, good order, safety and general welfare of the people. This government regulation involves the adjustment of rights for the public good and that this adjustment curtails some potential for the use or economic exploitation of private property. Public respondents

concluded that "to require compensation in all such circumstances would compel the government to regulate by purchase." Public respondents are inclined to believe that by entering private lands and concession areas, FTAA holders do not oust the owners thereof nor deprive them of all beneficial enjoyment of their properties as the said entry merely establishes a legal easement upon surface owners, occupants and concessionaires of a mining contract area. Taking in Eminent Domain Distinguished from Regulation in Police Power The power of eminent domain is the inherent right of the state (and of those entities to which the power has been lawfully delegated) to condemn private property to public use upon payment of just compensation.17 On the other hand, police power is the power of the state to promote public welfare by restraining and regulating the use of liberty and property.18 Although both police power and the power of eminent domain have the general welfare for their object, and recent trends show a mingling19 of the two with the latter being used as an implement of the former, there are still traditional distinctions between the two. Property condemned under police power is usually noxious or intended for a noxious purpose; hence, no compensation shall be paid.20 Likewise, in the exercise of police power, property rights of private individuals are subjected to restraints and burdens in order to secure the general comfort, health, and prosperity of the state. Thus, an ordinance prohibiting theaters from selling tickets in excess of their seating capacity (which would result in the diminution of profits of the theater-owners) was upheld valid as this would promote the comfort, convenience and safety of the customers.21 In U.S. v. Toribio,22 the court upheld the provisions of Act No. 1147, a statute regulating the slaughter of carabao for the purpose of conserving an adequate supply of draft animals, as a valid exercise of police power, notwithstanding the property rights impairment that the ordinance imposed on cattle owners. A zoning ordinance prohibiting the operation of a lumber yard within certain areas was assailed as unconstitutional in that it was an invasion of the property rights of the lumber yard owners in People v. de Guzman.23 The Court nonetheless ruled that the regulation was a valid exercise of police power. A similar ruling was arrived at in Seng Kee S Co. v. Earnshaw and Piatt24 where an ordinance divided the City of Manila into industrial and residential areas. A thorough scrutiny of the extant jurisprudence leads to a cogent deduction that where a property interest is merely restricted because the continued use thereof would be injurious to public welfare, or where property is destroyed because its continued existence would be injurious to public interest, there is no compensable taking.25 However, when a property interest is appropriated and applied to some public purpose, there is compensable taking.26 According to noted constitutionalist, Fr. Joaquin Bernas, SJ, in the exercise of its police power regulation, the state restricts the use of private property, but none of the property interests in the bundle of rights which constitute ownership is appropriated for use by or for the benefit of the public.27 Use of the property by the owner was limited, but no aspect of the property is used by or for the public.28 The

deprivation of use can in fact be total and it will not constitute compensable taking if nobody else acquires use of the property or any interest therein.29 If, however, in the regulation of the use of the property, somebody else acquires the use or interest thereof, such restriction constitutes compensable taking. Thus, in City Government of Quezon City v. Ericta,30 it was argued by the local government that an ordinance requiring private cemeteries to reserve 6% of their total areas for the burial of paupers was a valid exercise of the police power under the general welfare clause. This court did not agree in the contention, ruling that property taken under the police power is sought to be destroyed and not, as in this case, to be devoted to a public use. It further declared that the ordinance in question was actually a taking of private property without just compensation of a certain area from a private cemetery to benefit paupers who are charges of the local government. Being an exercise of eminent domain without provision for the payment of just compensation, the same was rendered invalid as it violated the principles governing eminent domain. In People v. Fajardo,31 the municipal mayor refused Fajardo permission to build a house on his own land on the ground that the proposed structure would destroy the view or beauty of the public plaza. The ordinance relied upon by the mayor prohibited the construction of any building that would destroy the view of the plaza from the highway. The court ruled that the municipal ordinance under the guise of police power permanently divest owners of the beneficial use of their property for the benefit of the public; hence, considered as a taking under the power of eminent domain that could not be countenanced without payment of just compensation to the affected owners. In this case, what the municipality wanted was to impose an easement on the property in order to preserve the view or beauty of the public plaza, which was a form of utilization of Fajardos property for public benefit.32 While the power of eminent domain often results in the appropriation of title to or possession of property, it need not always be the case. Taking may include trespass without actual eviction of the owner, material impairment of the value of the property or prevention of the ordinary uses for which the property was intended such as the establishment of an easement.33 In Ayala de Roxas v. City of Manila,34 it was held that the imposition of burden over a private property through easement was considered taking; hence, payment of just compensation is required. The Court declared: And, considering that the easement intended to be established, whatever may be the object thereof, is not merely a real right that will encumber the property, but is one tending to prevent the exclusive use of one portion of the same, by expropriating it for public use which, be it what it may, can not be accomplished unless the owner of the property condemned or seized be previously and duly indemnified, it is proper to protect the appellant by means of the remedy employed in such cases, as it is only adequate remedy when no other legal action can be resorted to, against an intent which is nothing short of an arbitrary restriction imposed by the city by virtue of the coercive power with which the same is invested. And in the case of National Power Corporation v. Gutierrez,35 despite the NPCs protestation that the owners were not totally deprived of the use of the land and could still plant the same crops as long as they did not come into contact with the wires, the Court nevertheless held that the easement of right-ofway was a taking under the power of eminent domain. The Court said:

In the case at bar, the easement of right-of-way is definitely a taking under the power of eminent domain. Considering the nature and effect of the installation of 230 KV Mexico-Limay transmission lines, the limitation imposed by NPC against the use of the land for an indefinite period deprives private respondents of its ordinary use. A case exemplifying an instance of compensable taking which does not entail transfer of title is Republic v. Philippine Long Distance Telephone Co.36 Here, the Bureau of Telecommunications, a government instrumentality, had contracted with the PLDT for the interconnection between the Government Telephone System and that of the PLDT, so that the former could make use of the lines and facilities of the PLDT. In its desire to expand services to government offices, the Bureau of Telecommunications demanded to expand its use of the PLDT lines. Disagreement ensued on the terms of the contract for the use of the PLDT facilities. The Court ruminated: Normally, of course, the power of eminent domain results in the taking or appropriation of title to, and possession of, the expropriated property; but no cogent reason appears why said power may not be availed of to impose only a burden upon the owner of the condemned property, without loss of title and possession. It is unquestionable that real property may, through expropriation, be subjected to an easement right of way.37 In Republic v. Castellvi,38 this Court had the occasion to spell out the requisites of taking in eminent domain, to wit: (1) the expropriator must enter a private property; (2) the entry must be for more than a momentary period. (3) the entry must be under warrant or color of legal authority; (4) the property must be devoted to public use or otherwise informally appropriated or injuriously affected; (5) the utilization of the property for public use must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property. As shown by the foregoing jurisprudence, a regulation which substantially deprives the owner of his proprietary rights and restricts the beneficial use and enjoyment for public use amounts to compensable taking. In the case under consideration, the entry referred to in Section 76 and the easement rights under Section 75 of Rep. Act No. 7942 as well as the various rights to CAMC under its FTAA are no different from the deprivation of proprietary rights in the cases discussed which this Court considered as taking. Section 75 of the law in question reads: Easement Rights. - When mining areas are so situated that for purposes of more convenient mining operations it is necessary to build, construct or install on the mining areas or lands owned, occupied or leased by other persons, such infrastructure as roads, railroads, mills, waste dump sites, tailing ponds, warehouses, staging or storage areas and port facilities, tramways, runways, airports, electric transmission, telephone or telegraph lines, dams and their normal flood and catchment areas, sites for

water wells, ditches, canals, new river beds, pipelines, flumes, cuts, shafts, tunnels, or mills, the contractor, upon payment of just compensation, shall be entitled to enter and occupy said mining areas or lands. Section 76 provides: Entry into private lands and concession areas Subject to prior notification, holders of mining rights shall not be prevented from entry into private lands and concession areas by surface owners, occupants, or concessionaires when conducting mining operations therein. The CAMC FTAA grants in favor of CAMC the right of possession of the Exploration Contract Area, the full right of ingress and egress and the right to occupy the same. It also bestows CAMC the right not to be prevented from entry into private lands by surface owners or occupants thereof when prospecting, exploring and exploiting minerals therein. The entry referred to in Section 76 is not just a simple right-of-way which is ordinarily allowed under the provisions of the Civil Code. Here, the holders of mining rights enter private lands for purposes of conducting mining activities such as exploration, extraction and processing of minerals. Mining right holders build mine infrastructure, dig mine shafts and connecting tunnels, prepare tailing ponds, storage areas and vehicle depots, install their machinery, equipment and sewer systems. On top of this, under Section 75, easement rights are accorded to them where they may build warehouses, port facilities, electric transmission, railroads and other infrastructures necessary for mining operations. All these will definitely oust the owners or occupants of the affected areas the beneficial ownership of their lands. Without a doubt, taking occurs once mining operations commence. Section 76 of Rep. Act No. 7942 is a Taking Provision Moreover, it would not be amiss to revisit the history of mining laws of this country which would help us understand Section 76 of Rep. Act No. 7942. This provision is first found in Section 27 of Commonwealth Act No. 137 which took effect on 7 November 1936, viz: Before entering private lands the prospector shall first apply in writing for written permission of the private owner, claimant, or holder thereof, and in case of refusal by such private owner, claimant, or holder to grant such permission, or in case of disagreement as to the amount of compensation to be paid for such privilege of prospecting therein, the amount of such compensation shall be fixed by agreement among the prospector, the Director of the Bureau of Mines and the surface owner, and in case of their failure to unanimously agree as to the amount of compensation, all questions at issue shall be determined by the Court of First Instance. Similarly, the pertinent provision of Presidential Decree No. 463, otherwise known as "The Mineral Resources Development Decree of 1974," provides: SECTION 12. Entry to Public and Private Lands. A person who desires to conduct prospecting or other mining operations within public lands covered by concessions or rights other than mining shall

first obtain the written permission of the government official concerned before entering such lands. In the case of private lands, the written permission of the owner or possessor of the land must be obtained before entering such lands. In either case, if said permission is denied, the Director, at the request of the interested person may intercede with the owner or possessor of the land. If the intercession fails, the interested person may bring suit in the Court of First Instance of the province where the land is situated. If the court finds the request justified, it shall issue an order granting the permission after fixing the amount of compensation and/or rental due the owner or possessor: Provided, That pending final adjudication of such amount, the court shall upon recommendation of the Director permit the interested person to enter, prospect and/or undertake other mining operations on the disputed land upon posting by such interested person of a bond with the court which the latter shall consider adequate to answer for any damage to the owner or possessor of the land resulting from such entry, prospecting or any other mining operations. Hampered by the difficulties and delays in securing surface rights for the entry into private lands for purposes of mining operations, Presidential Decree No. 512 dated 19 July 1974 was passed into law in order to achieve full and accelerated mineral resources development. Thus, Presidential Decree No. 512 provides for a new system of surface rights acquisition by mining prospectors and claimants. Whereas in Commonwealth Act No. 137 and Presidential Decree No. 463 eminent domain may only be exercised in order that the mining claimants can build, construct or install roads, railroads, mills, warehouses and other facilities, this time, the power of eminent domain may now be invoked by mining operators for the entry, acquisition and use of private lands, viz: SECTION 1. Mineral prospecting, location, exploration, development and exploitation is hereby declared of public use and benefit, and for which the power of eminent domain may be invoked and exercised for the entry, acquisition and use of private lands. x x x. The evolution of mining laws gives positive indication that mining operators who are qualified to own lands were granted the authority to exercise eminent domain for the entry, acquisition, and use of private lands in areas open for mining operations. This grant of authority extant in Section 1 of Presidential Decree No. 512 is not expressly repealed by Section 76 of Rep. Act No. 7942; and neither are the former statutes impliedly repealed by the former. These two provisions can stand together even if Section 76 of Rep. Act No. 7942 does not spell out the grant of the privilege to exercise eminent domain which was present in the old law. It is an established rule in statutory construction that in order that one law may operate to repeal another law, the two laws must be inconsistent.39 The former must be so repugnant as to be irreconciliable with the latter act. Simply because a latter 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 latter, since the new law may be cumulative or a continuation of the old one. As has been the ruled, repeals by implication are not favored, and will not be decreed unless it is manifest that the legislature so intended.40 As laws are presumed to be passed with deliberation and 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 the same matter, unless the repugnancy between

the two is not only irreconcilable, but also clear and convincing, and flowing necessarily from the language used, unless the later act fully embraces the subject matter of the earlier, or unless the reason for the earlier act is beyond peradventure removed.41 Hence, every effort must be used to make all acts stand and if, by any reasonable construction, they can be reconciled, the latter act will not operate as a repeal of the earlier. Considering that Section 1 of Presidential Decree No. 512 granted the qualified mining operators the authority to exercise eminent domain and since this grant of authority is deemed incorporated in Section 76 of Rep. Act No. 7942, the inescapable conclusion is that the latter provision is a taking provision. While this Court declares that the assailed provision is a taking provision, this does not mean that it is unconstitutional on the ground that it allows taking of private property without the determination of public use and the payment of just compensation. The taking to be valid must be for public use.42 Public use as a requirement for the valid exercise of the power of eminent domain is now synonymous with public interest, public benefit, public welfare and public convenience.43 It includes the broader notion of indirect public benefit or advantage. Public use as traditionally understood as "actual use by the public" has already been abandoned.44 Mining industry plays a pivotal role in the economic development of the country and is a vital tool in the governments thrust of accelerated recovery.45 The importance of the mining industry for national development is expressed in Presidential Decree No. 463: WHEREAS, mineral production is a major support of the national economy, and therefore the intensified discovery, exploration, development and wise utilization of the countrys mineral resources are urgently needed for national development. Irrefragably, mining is an industry which is of public benefit. That public use is negated by the fact that the state would be taking private properties for the benefit of private mining firms or mining contractors is not at all true. In Heirs of Juancho Ardona v. Reyes,46 petitioners therein contended that the promotion of tourism is not for public use because private concessionaires would be allowed to maintain various facilities such as restaurants, hotels, stores, etc., inside the tourist area. The Court thus contemplated: The rule in Berman v. Parker [348 U.S. 25; 99 L. ed. 27] of deference to legislative policy even if such policy might mean taking from one private person and conferring on another private person applies as well in the Philippines. ". . . Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established. x x x"47

Petitioners further maintain that the states discretion to decide when to take private property is reduced contractually by Section 13.5 of the CAMC FTAA, which reads: If the CONTRACTOR so requests at its option, the GOVERNMENT shall use its offices and legal powers to assist in the acquisition at reasonable cost of any surface areas or rights required by the CONTRACTOR at the CONTRACTORs cost to carry out the Mineral Exploration and the Mining Operations herein. All obligations, payments and expenses arising from, or incident to, such agreements or acquisition of right shall be for the account of the CONTRACTOR and shall be recoverable as Operating Expense. According to petitioners, the government is reduced to a sub-contractor upon the request of the private respondent, and on account of the foregoing provision, the contractor can compel the government to exercise its power of eminent domain thereby derogating the latters power to expropriate property. The provision of the FTAA in question lays down the ways and means by which the foreign-owned contractor, disqualified to own land, identifies to the government the specific surface areas within the FTAA contract area to be acquired for the mine infrastructure.48 The government then acquires ownership of the surface land areas on behalf of the contractor, through a voluntary transaction in order to enable the latter to proceed to fully implement the FTAA. Eminent domain is not yet called for at this stage since there are still various avenues by which surface rights can be acquired other than expropriation. The FTAA provision under attack merely facilitates the implementation of the FTAA given to CAMC and shields it from violating the Anti-Dummy Law. Hence, when confronted with the same question in La Bugal-BLaan Tribal Association, Inc. v. Ramos,49 the Court answered: Clearly, petitioners have needlessly jumped to unwarranted conclusions, without being aware of the rationale for the said provision. That provision does not call for the exercise of the power of eminent domain -- and determination of just compensation is not an issue -- as much as it calls for a qualified party to acquire the surface rights on behalf of a foreign-owned contractor. Rather than having the foreign contractor act through a dummy corporation, having the State do the purchasing is a better alternative. This will at least cause the government to be aware of such transaction/s and foster transparency in the contractors dealings with the local property owners. The government, then, will not act as a subcontractor of the contractor; rather, it will facilitate the transaction and enable the parties to avoid a technical violation of the Anti-Dummy Law. There is also no basis for the claim that the Mining Law and its implementing rules and regulations do not provide for just compensation in expropriating private properties. Section 76 of Rep. Act No. 7942 and Section 107 of DAO 96-40 provide for the payment of just compensation: Section 76. xxx Provided, that any damage to the property of the surface owner, occupant, or concessionaire as a consequence of such operations shall be properly compensated as may be provided for in the implementing rules and regulations.

Section 107. Compensation of the Surface Owner and Occupant- Any damage done to the property of the surface owners, occupant, or concessionaire thereof as a consequence of the mining operations or as a result of the construction or installation of the infrastructure mentioned in 104 above shall be properly and justly compensated. Such compensation shall be based on the agreement entered into between the holder of mining rights and the surface owner, occupant or concessionaire thereof, where appropriate, in accordance with P.D. No. 512. (Emphasis supplied.) Second Substantive Issue: Power of Courts to Determine Just Compensation Closely-knit to the issue of taking is the determination of just compensation. It is contended that Rep. Act No. 7942 and Section 107 of DAO 96-40 encroach on the power of the trial courts to determine just compensation in eminent domain cases inasmuch as the same determination of proper compensation are cognizable only by the Panel of Arbitrators. The question on the judicial determination of just compensation has been settled in the case of Export Processing Zone Authority v. Dulay50 wherein the court declared that the determination of just compensation in eminent domain cases is a judicial function. Even as the executive department or the legislature may make the initial determinations, the same cannot prevail over the courts findings. Implementing Section 76 of Rep. Act No. 7942, Section 105 of DAO 96-40 states that holder(s) of mining right(s) shall not be prevented from entry into its/their contract/mining areas for the purpose of exploration, development, and/or utilization. That in cases where surface owners of the lands, occupants or concessionaires refuse to allow the permit holder or contractor entry, the latter shall bring the matter before the Panel of Arbitrators for proper disposition. Section 106 states that voluntary agreements between the two parties permitting the mining right holders to enter and use the surface owners lands shall be registered with the Regional Office of the MGB. In connection with Section 106, Section 107 provides that the compensation for the damage done to the surface owner, occupant or concessionaire as a consequence of mining operations or as a result of the construction or installation of the infrastructure shall be properly and justly compensated and that such compensation shall be based on the agreement between the holder of mining rights and surface owner, occupant or concessionaire, or where appropriate, in accordance with Presidential Decree No. 512. In cases where there is disagreement to the compensation or where there is no agreement, the matter shall be brought before the Panel of Arbitrators. Section 206 of the implementing rules and regulations provides an aggrieved party the remedy to appeal the decision of the Panel of Arbitrators to the Mines Adjudication Board, and the latters decision may be reviewed by the Supreme Court by filing a petition for review on certiorari.51 An examination of the foregoing provisions gives no indication that the courts are excluded from taking cognizance of expropriation cases under the mining law. The disagreement referred to in Section 107 does not involve the exercise of eminent domain, rather it contemplates of a situation wherein the permit holders are allowed by the surface owners entry into the latters lands and disagreement ensues

as regarding the proper compensation for the allowed entry and use of the private lands. Noticeably, the provision points to a voluntary sale or transaction, but not to an involuntary sale. The legislature, in enacting the mining act, is presumed to have deliberated with full knowledge of all existing laws and jurisprudence on the subject. Thus, it is but reasonable to conclude that in passing such statute it was in accord with the existing laws and jurisprudence on the jurisdiction of courts in the determination of just compensation and that it was not intended to interfere with or abrogate any former law relating to the same matter. Indeed, there is nothing in the provisions of the assailed law and its implementing rules and regulations that exclude the courts from their jurisdiction to determine just compensation in expropriation proceedings involving mining operations. Although Section 105 confers upon the Panel of Arbitrators the authority to decide cases where surface owners, occupants, concessionaires refuse permit holders entry, thus, necessitating involuntary taking, this does not mean that the determination of the just compensation by the Panel of Arbitrators or the Mines Adjudication Board is final and conclusive. The determination is only preliminary unless accepted by all parties concerned. There is nothing wrong with the grant of primary jurisdiction by the Panel of Arbitrators or the Mines Adjudication Board to determine in a preliminary matter the reasonable compensation due the affected landowners or occupants.52 The original and exclusive jurisdiction of the courts to decide determination of just compensation remains intact despite the preliminary determination made by the administrative agency. As held in Philippine Veterans Bank v. Court of Appeals53: The jurisdiction of the Regional Trial Courts is not any less "original and exclusive" because the question is first passed upon by the DAR, as the judicial proceedings are not a continuation of the administrative determination. Third Substantive Issue: Sufficient Control by the State Over Mining Operations Anent the third issue, petitioners charge that Rep. Act No. 7942, as well as its Implementing Rules and Regulations, makes it possible for FTAA contracts to cede over to a fully foreign-owned corporation full control and management of mining enterprises, with the result that the State is allegedly reduced to a passive regulator dependent on submitted plans and reports, with weak review and audit powers. The State is not acting as the supposed owner of the natural resources for and on behalf of the Filipino people; it practically has little effective say in the decisions made by the enterprise. In effect, petitioners asserted that the law, the implementing regulations, and the CAMC FTAA cede beneficial ownership of the mineral resources to the foreign contractor. It must be noted that this argument was already raised in La Bugal-BLaan Tribal Association, Inc. v. Ramos,54 where the Court answered in the following manner: RA 7942 provides for the states control and supervision over mining operations. The following provisions thereof establish the mechanism of inspection and visitorial rights over mining operations and institute reportorial requirements in this manner: 1. Sec. 8 which provides for the DENRs power of over-all supervision and periodic review for "the conservation, management, development and proper use of the States mineral resources";

2. Sec. 9 which authorizes the Mines and Geosciences Bureau (MGB) under the DENR to exercise "direct charge in the administration and disposition of mineral resources", and empowers the MGB to "monitor the compliance by the contractor of the terms and conditions of the mineral agreements", "confiscate surety and performance bonds", and deputize whenever necessary any member or unit of the Phil. National Police, barangay, duly registered non-governmental organization (NGO) or any qualified person to police mining activities; 3. Sec. 66 which vests in the Regional Director "exclusive jurisdiction over safety inspections of all installations, whether surface or underground", utilized in mining operations. 4. Sec. 35, which incorporates into all FTAAs the following terms, conditions and warranties: "(g) Mining operations shall be conducted in accordance with the provisions of the Act and its IRR. "(h) Work programs and minimum expenditures commitments. xxxx "(k) Requiring proponent to effectively use appropriate anti-pollution technology and facilities to protect the environment and restore or rehabilitate mined-out areas. "(l) The contractors shall furnish the Government records of geologic, accounting and other relevant data for its mining operation, and that books of accounts and records shall be open for inspection by the government. x x x. "(m) Requiring the proponent to dispose of the minerals at the highest price and more advantageous terms and conditions. xxxx "(o) Such other terms and conditions consistent with the Constitution and with this Act as the Secretary may deem to be for the best interest of the State and the welfare of the Filipino people." The foregoing provisions of Section 35 of RA 7942 are also reflected and implemented in Section 56 (g), (h), (l), (m) and (n) of the Implementing Rules, DAO 96-40. Moreover, RA 7942 and DAO 96-40 also provide various stipulations confirming the governments control over mining enterprises:
o

The contractor is to relinquish to the government those portions of the contract area not needed for mining operations and not covered by any declaration of mining feasibility (Section 35-e, RA 7942; Section 60, DAO 96-40). The contractor must comply with the provisions pertaining to mine safety, health and environmental protection (Chapter XI, RA 7942; Chapters XV and XVI, DAO 96-40). For violation of any of its terms and conditions, government may cancel an FTAA. (Chapter XVII, RA 7942; Chapter XXIV, DAO 96-40).

An FTAA contractor is obliged to open its books of accounts and records for 0inspection by the government (Section 56-m, DAO 96-40). An FTAA contractor has to dispose of the minerals and by-products at the highest market price and register with the MGB a copy of the sales agreement (Section 56-n, DAO 96-40). MGB is mandated to monitor the contractors compliance with the terms and conditions of the FTAA; and to deputize, when necessary, any member or unit of the Philippine National Police, the barangay or a DENR-accredited nongovernmental organization to police mining activities (Section 7-d and -f, DAO 96-40). An FTAA cannot be transferred or assigned without prior approval by the President (Section 40, RA 7942; Section 66, DAO 96-40). A mining project under an FTAA cannot proceed to the construction/development/utilization stage, unless its Declaration of Mining Project Feasibility has been approved by government (Section 24, RA 7942). The Declaration of Mining Project Feasibility filed by the contractor cannot be approved without submission of the following documents:

1. Approved mining project feasibility study (Section 53-d, DAO 96-40) 2. Approved three-year work program (Section 53-a-4, DAO 96-40) 3. Environmental compliance certificate (Section 70, RA 7942) 4. Approved environmental protection and enhancement program (Section 69, RA 7942) 5. Approval by the Sangguniang Panlalawigan/Bayan/Barangay (Section 70, RA 7942; Section 27, RA 7160) 6. Free and prior informed consent by the indigenous peoples concerned, including payment of royalties through a Memorandum of Agreement (Section 16, RA 7942; Section 59, RA 8371)
o

The FTAA contractor is obliged to assist in the development of its mining community, promotion of the general welfare of its inhabitants, and development of science and mining technology (Section 57, RA 7942). The FTAA contractor is obliged to submit reports (on quarterly, semi-annual or annual basis as the case may be; per Section 270, DAO 96-40), pertaining to the following:

1. Exploration 2. Drilling 3. Mineral resources and reserves 4. Energy consumption

5. Production 6. Sales and marketing 7. Employment 8. Payment of taxes, royalties, fees and other Government Shares 9. Mine safety, health and environment 10. Land use 11. Social development 12. Explosives consumption
o

An FTAA pertaining to areas within government reservations cannot be granted without a written clearance from the government agencies concerned (Section 19, RA 7942; Section 54, DAO 96-40). An FTAA contractor is required to post a financial guarantee bond in favor of the government in an amount equivalent to its expenditures obligations for any particular year. This requirement is apart from the representations and warranties of the contractor that it has access to all the financing, managerial and technical expertise and technology necessary to carry out the objectives of the FTAA (Section 35-b, -e, and -f, RA 7942). Other reports to be submitted by the contractor, as required under DAO 96-40, are as follows: an environmental report on the rehabilitation of the mined-out area and/or mine waste/tailing covered area, and anti-pollution measures undertaken (Section 35-a-2); annual reports of the mining operations and records of geologic accounting (Section 56-m); annual progress reports and final report of exploration activities (Section 56-2). Other programs required to be submitted by the contractor, pursuant to DAO 96-40, are the following: a safety and health program (Section 144); an environmental work program (Section 168); an annual environmental protection and enhancement program (Section 171).

The foregoing gamut of requirements, regulations, restrictions and limitations imposed upon the FTAA contractor by the statute and regulations easily overturns petitioners contention. The setup under RA 7942 and DAO 96-40 hardly relegates the State to the role of a "passive regulator" dependent on submitted plans and reports. On the contrary, the government agencies concerned are empowered to approve or disapprove -- hence, to influence, direct and change -- the various work programs and the corresponding minimum expenditure commitments for each of the exploration, development and utilization phases of the mining enterprise. Once these plans and reports are approved, the contractor is bound to comply with its commitments therein. Figures for mineral production and sales are regularly monitored and subjected to government review, in order to ensure that the products and by-products are disposed of at the best prices possible;

even copies of sales agreements have to be submitted to and registered with MGB. And the contractor is mandated to open its books of accounts and records for scrutiny, so as to enable the State to determine if the government share has been fully paid. The State may likewise compel the contractors compliance with mandatory requirements on mine safety, health and environmental protection, and the use of anti-pollution technology and facilities. Moreover, the contractor is also obligated to assist in the development of the mining community and to pay royalties to the indigenous peoples concerned. Cancellation of the FTAA may be the penalty for violation of any of its terms and conditions and/or noncompliance with statutes or regulations. This general, all-around, multipurpose sanction is no trifling matter, especially to a contractor who may have yet to recover the tens or hundreds of millions of dollars sunk into a mining project. Overall, considering the provisions of the statute and the regulations just discussed, we believe that the State definitely possesses the means by which it can have the ultimate word in the operation of the enterprise, set directions and objectives, and detect deviations and noncompliance by the contractor; likewise, it has the capability to enforce compliance and to impose sanctions, should the occasion therefor arise. In other words, the FTAA contractor is not free to do whatever it pleases and get away with it; on the contrary, it will have to follow the government line if it wants to stay in the enterprise. Ineluctably then, RA 7942 and DAO 96-40 vest in the government more than a sufficient degree of control and supervision over the conduct of mining operations. Fourth Substantive Issue: The Proper Interpretation of the Constitutional Phrase "Agreements Involving Either Technical or Financial Assistance In interpreting the first and fourth paragraphs of Section 2, Article XII of the Constitution, petitioners set forth the argument that foreign corporations are barred from making decisions on the conduct of operations and the management of the mining project. The first paragraph of Section 2, Article XII reads: x x x The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into coproduction, joint venture, or production sharing agreements with Filipino citizens, or corporations or associations at least sixty percentum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty five years, renewable for not more than twenty five years, and under such terms and conditions as may be provided by law x x x. The fourth paragraph of Section 2, Article XII provides: The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large scale exploration, development, and utilization of minerals, petroleum,

and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country x x x. Petitioners maintain that the first paragraph bars aliens and foreign-owned corporations from entering into any direct arrangement with the government including those which involve co-production, joint venture or production sharing agreements. They likewise insist that the fourth paragraph allows foreign-owned corporations to participate in the large-scale exploration, development and utilization of natural resources, but such participation, however, is merely limited to an agreement for either financial or technical assistance only. Again, this issue has already been succinctly passed upon by this Court in La Bugal-BLaan Tribal Association, Inc. v. Ramos.55 In discrediting such argument, the Court ratiocinated: Petitioners claim that the phrase "agreements x x x involving either technical or financial assistance" simply means technical assistance or financial assistance agreements, nothing more and nothing else. They insist that there is no ambiguity in the phrase, and that a plain reading of paragraph 4 quoted above leads to the inescapable conclusion that what a foreign-owned corporation may enter into with the government is merely an agreement for either financial or technical assistance only, for the largescale exploration, development and utilization of minerals, petroleum and other mineral oils; such a limitation, they argue, excludes foreign management and operation of a mining enterprise. This restrictive interpretation, petitioners believe, is in line with the general policy enunciated by the Constitution reserving to Filipino citizens and corporations the use and enjoyment of the countrys natural resources. They maintain that this Courts Decision of January 27, 2004 correctly declared the WMCP FTAA, along with pertinent provisions of RA 7942, void for allowing a foreign contractor to have direct and exclusive management of a mining enterprise. Allowing such a privilege not only runs counter to the "full control and supervision" that the State is constitutionally mandated to exercise over the exploration, development and utilization of the countrys natural resources; doing so also vests in the foreign company "beneficial ownership" of our mineral resources. It will be recalled that the Decision of January 27, 2004 zeroed in on "management or other forms of assistance" or other activities associated with the "service contracts" of the martial law regime, since "the management or operation of mining activities by foreign contractors, which is the primary feature of service contracts, was precisely the evil that the drafters of the 1987 Constitution sought to eradicate." xxxx We do not see how applying a strictly literal or verba legis interpretation of paragraph 4 could inexorably lead to the conclusions arrived at in the ponencia. First, the drafters choice of words -their use of the phrase agreements x x x involving either technical or financial assistance -- does not indicate the intent to exclude other modes of assistance. The drafters opted to use involving when they could have simply said agreements for financial or technical assistance, if that was their intention to begin with. In this case, the limitation would be very clear and no further debate would ensue.

In contrast, the use of the word "involving" signifies the possibility of the inclusion of other forms of assistance or activities having to do with, otherwise related to or compatible with financial or technical assistance. The word "involving" as used in this context has three connotations that can be differentiated thus: one, the sense of "concerning," "having to do with," or "affecting"; two, "entailing," "requiring," "implying" or "necessitating"; and three, "including," "containing" or "comprising." Plainly, none of the three connotations convey a sense of exclusivity. Moreover, the word "involving," when understood in the sense of "including," as in including technical or financial assistance, necessarily implies that there are activities other than those that are being included. In other words, if an agreement includes technical or financial assistance, there is apart from such assistance -- something else already in, and covered or may be covered by, the said agreement. In short, it allows for the possibility that matters, other than those explicitly mentioned, could be made part of the agreement. Thus, we are now led to the conclusion that the use of the word "involving" implies that these agreements with foreign corporations are not limited to mere financial or technical assistance. The difference in sense becomes very apparent when we juxtapose "agreements for technical or financial assistance" against "agreements including technical or financial assistance." This much is unalterably clear in a verba legis approach. Second, if the real intention of the drafters was to confine foreign corporations to financial or technical assistance and nothing more, their language would have certainly been so unmistakably restrictive and stringent as to leave no doubt in anyones mind about their true intent. For example, they would have used the sentence foreign corporations are absolutely prohibited from involvement in the management or operation of mining or similar ventures or words of similar import. A search for such stringent wording yields negative results. Thus, we come to the inevitable conclusion that there was a conscious and deliberate decision to avoid the use of restrictive wording that bespeaks an intent not to use the expression "agreements x x x involving either technical or financial assistance" in an exclusionary and limiting manner. Fifth Substantive Issue: Service Contracts Not Deconstitutionalized Lastly, petitioners stress that the service contract regime under the 1973 Constitution is expressly prohibited under the 1987 Constitution as the term service contracts found in the former was deleted in the latter to avoid the circumvention of constitutional prohibitions that were prevalent in the 1987 Constitution. According to them, the framers of the 1987 Constitution only intended for foreign-owned corporations to provide either technical assistance or financial assistance. Upon perusal of the CAMC FTAA, petitioners are of the opinion that the same is a replica of the service contract agreements that the present constitution allegedly prohibit. Again, this contention is not well-taken. The mere fact that the term service contracts found in the 1973 Constitution was not carried over to the present constitution, sans any categorical statement banning service contracts in mining activities, does not mean that service contracts as understood in the 1973 Constitution was eradicated in the 1987 Constitution.56 The 1987 Constitution allows the continued use of service contracts with foreign corporations as contractors who would invest in and operate and

manage extractive enterprises, subject to the full control and supervision of the State; this time, however, safety measures were put in place to prevent abuses of the past regime.57 We ruled, thus: To our mind, however, such intent cannot be definitively and conclusively established from the mere failure to carry the same expression or term over to the new Constitution, absent a more specific, explicit and unequivocal statement to that effect. What petitioners seek (a complete ban on foreign participation in the management of mining operations, as previously allowed by the earlier Constitutions) is nothing short of bringing about a momentous sea change in the economic and developmental policies; and the fundamentally capitalist, free-enterprise philosophy of our government. We cannot imagine such a radical shift being undertaken by our government, to the great prejudice of the mining sector in particular and our economy in general, merely on the basis of the omission of the terms service contract from or the failure to carry them over to the new Constitution. There has to be a much more definite and even unarguable basis for such a drastic reversal of policies. xxxx The foregoing are mere fragments of the framers lengthy discussions of the provision dealing with agreements x x x involving either technical or financial assistance, which ultimately became paragraph 4 of Section 2 of Article XII of the Constitution. Beyond any doubt, the members of the ConCom were actually debating about the martial-law-era service contracts for which they were crafting appropriate safeguards. In the voting that led to the approval of Article XII by the ConCom, the explanations given by Commissioners Gascon, Garcia and Tadeo indicated that they had voted to reject this provision on account of their objections to the "constitutionalization" of the "service contract" concept. Mr. Gascon said, "I felt that if we would constitutionalize any provision on service contracts, this should always be with the concurrence of Congress and not guided only by a general law to be promulgated by Congress." Mr. Garcia explained, "Service contracts are given constitutional legitimization in Sec. 3, even when they have been proven to be inimical to the interests of the nation, providing, as they do, the legal loophole for the exploitation of our natural resources for the benefit of foreign interests." Likewise, Mr. Tadeo cited inter alia the fact that service contracts continued to subsist, enabling foreign interests to benefit from our natural resources. It was hardly likely that these gentlemen would have objected so strenuously, had the provision called for mere technical or financial assistance and nothing more. The deliberations of the ConCom and some commissioners explanation of their votes leave no room for doubt that the service contract concept precisely underpinned the commissioners understanding of the "agreements involving either technical or financial assistance." xxxx From the foregoing, we are impelled to conclude that the phrase agreements involving either technical or financial assistance, referred to in paragraph 4, are in fact service contracts. But unlike those of the 1973 variety, the new ones are between foreign corporations acting as contractors on the one hand; and

on the other, the government as principal or "owner" of the works. In the new service contracts, the foreign contractors provide capital, technology and technical know-how, and managerial expertise in the creation and operation of large-scale mining/extractive enterprises; and the government, through its agencies (DENR, MGB), actively exercises control and supervision over the entire operation. xxxx It is therefore reasonable and unavoidable to make the following conclusion, based on the above arguments. As written by the framers and ratified and adopted by the people, the Constitution allows the continued use of service contracts with foreign corporations -- as contractors who would invest in and operate and manage extractive enterprises, subject to the full control and supervision of the State -sans the abuses of the past regime. The purpose is clear: to develop and utilize our mineral, petroleum and other resources on a large scale for the immediate and tangible benefit of the Filipino people.58 WHEREFORE, the instant petition for prohibition and mandamus is hereby DISMISSED. Section 76 of Republic Act No. 7942 and Section 107 of DAO 96-40; Republic Act No. 7942 and its Implementing Rules and Regulations contained in DAO 96-40 insofar as they relate to financial and technical assistance agreements referred to in paragraph 4 of Section 2 of Article XII of the Constitution are NOT UNCONSTITUTIONAL. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-34915 June 24, 1983 CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON CITY, Petitioners, vs. HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First Instance of Rizal, Quezon City, Branch XVIII; HIMLAYANG PILIPINO, INC., Respondents.

GUTIERREZ, JR., J.: chanrobles virtual law library This is a petition for review which seeks the reversal of the decision of the Court of First Instance of Rizal, Branch XVIII declaring Section 9 of Ordinance No. 6118, S-64, of the Quezon City Council null and void.chanroblesvirtualawlibrary chanrobles virtual law library Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE CEMETERY OR BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON CITY AND PROVIDING PENALTIES FOR THE VIOLATION THEREOF" provides:

Sec. 9. At least six (6) percent of the total area of the memorial park cemetery shall be set aside for charity burial of deceased persons who are paupers and have been residents of Quezon City for at least 5 years prior to their death, to be determined by competent City Authorities. The area so designated shall immediately be developed and should be open for operation not later than six months from the date of approval of the application. For several years, the aforequoted section of the Ordinance was not enforced by city authorities but seven years after the enactment of the ordinance, the Quezon City Council passed the following resolution: RESOLVED by the council of Quezon assembled, to request, as it does hereby request the City Engineer, Quezon City, to stop any further selling and/or transaction of memorial park lots in Quezon City where the owners thereof have failed to donate the required 6% space intended for paupers burial. Pursuant to this petition, the Quezon City Engineer notified respondent Himlayang Pilipino, Inc. in writing that Section 9 of Ordinance No. 6118, S-64 would be enforced chanrobles virtual law library Respondent Himlayang Pilipino reacted by filing with the Court of First Instance of Rizal Branch XVIII at Quezon City, a petition for declaratory relief, prohibition and mandamus with preliminary injunction (Sp. Proc. No. Q-16002) seeking to annul Section 9 of the Ordinance in question The respondent alleged that the same is contrary to the Constitution, the Quezon City Charter, the Local Autonomy Act, and the Revised Administrative Code.chanroblesvirtualawlibrary chanrobles virtual law library There being no issue of fact and the questions raised being purely legal both petitioners and respondent agreed to the rendition of a judgment on the pleadings. The respondent court, therefore, rendered the decision declaring Section 9 of Ordinance No. 6118, S-64 null and void.chanroblesvirtualawlibrary chanrobles virtual law library A motion for reconsideration having been denied, the City Government and City Council filed the instant petition.chanroblesvirtualawlibrary chanrobles virtual law library Petitioners argue that the taking of the respondent's property is a valid and reasonable exercise of police power and that the land is taken for a public use as it is intended for the burial ground of paupers. They further argue that the Quezon City Council is authorized under its charter, in the exercise of local police power, " to make such further ordinances and resolutions not repugnant to law as may be necessary to carry into effect and discharge the powers and duties conferred by this Act and such as it shall deem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort and convenience of the city and the inhabitants thereof, and for the protection of property therein." chanrobles virtual law library On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or confiscation of property is obvious because the questioned ordinance permanently restricts the use of the property such that it cannot be used for any reasonable purpose and deprives the owner of all beneficial use of his property.chanroblesvirtualawlibrary chanrobles virtual law library

The respondent also stresses that the general welfare clause is not available as a source of power for the taking of the property in this case because it refers to "the power of promoting the public welfare by restraining and regulating the use of liberty and property." The respondent points out that if an owner is deprived of his property outright under the State's police power, the property is generally not taken for public use but is urgently and summarily destroyed in order to promote the general welfare. The respondent cites the case of a nuisance per se or the destruction of a house to prevent the spread of a conflagration.chanroblesvirtualawlibrary chanrobles virtual law library We find the stand of the private respondent as well as the decision of the respondent Judge to be wellfounded. We quote with approval the lower court's ruling which declared null and void Section 9 of the questioned city ordinance: The issue is: Is Section 9 of the ordinance in question a valid exercise of the police power? chanrobles virtual law library An examination of the Charter of Quezon City (Rep. Act No. 537), does not reveal any provision that would justify the ordinance in question except the provision granting police power to the City. Section 9 cannot be justified under the power granted to Quezon City to tax, fix the license fee, and regulate such other business, trades, and occupation as may be established or practised in the City.' (Subsections 'C', Sec. 12, R.A. 537).chanroblesvirtualawlibrary chanrobles virtual law library The power to regulate does not include the power to prohibit (People vs. Esguerra, 81 PhiL 33, Vega vs. Municipal Board of Iloilo, L-6765, May 12, 1954; 39 N.J. Law, 70, Mich. 396). A fortiori, the power to regulate does not include the power to confiscate. The ordinance in question not only confiscates but also prohibits the operation of a memorial park cemetery, because under Section 13 of said ordinance, 'Violation of the provision thereof is punishable with a fine and/or imprisonment and that upon conviction thereof the permit to operate and maintain a private cemetery shall be revoked or cancelled.' The confiscatory clause and the penal provision in effect deter one from operating a memorial park cemetery. Neither can the ordinance in question be justified under sub- section "t", Section 12 of Republic Act 537 which authorizes the City Council to'prohibit the burial of the dead within the center of population of the city and provide for their burial in such proper place and in such manner as the council may determine, subject to the provisions of the general law regulating burial grounds and cemeteries and governing funerals and disposal of the dead.' (Sub-sec. (t), Sec. 12, Rep. Act No. 537). There is nothing in the above provision which authorizes confiscation or as euphemistically termed by the respondents, 'donation' chanrobles virtual law library We now come to the question whether or not Section 9 of the ordinance in question is a valid exercise of police power. The police power of Quezon City is defined in sub-section 00, Sec. 12, Rep. Act 537 which reads as follows: (00) To make such further ordinance and regulations not repugnant to law as may be necessary to carry into effect and discharge the powers and duties conferred by this act and such as it shall deem

necessary and proper to provide for the health and safety, promote, the prosperity, improve the morals, peace, good order, comfort and convenience of the city and the inhabitants thereof, and for the protection of property therein; and enforce obedience thereto with such lawful fines or penalties as the City Council may prescribe under the provisions of subsection (jj) of this section. We start the discussion with a restatement of certain basic principles. Occupying the forefront in the bill of rights is the provision which states that 'no person shall be deprived of life, liberty or property without due process of law' (Art. Ill, Section 1 subparagraph 1, Constitution).chanroblesvirtualawlibrary chanrobles virtual law library On the other hand, there are three inherent powers of government by which the state interferes with the property rights, namely-. (1) police power, (2) eminent domain, (3) taxation. These are said to exist independently of the Constitution as necessary attributes of sovereignty.chanroblesvirtualawlibrary chanrobles virtual law library Police power is defined by Freund as 'the power of promoting the public welfare by restraining and regulating the use of liberty and property' (Quoted in Political Law by Tanada and Carreon, V-11, p. 50). It is usually exerted in order to merely regulate the use and enjoyment of property of the owner. If he is deprived of his property outright, it is not taken for public use but rather to destroy in order to promote the general welfare. In police power, the owner does not recover from the government for injury sustained in consequence thereof (12 C.J. 623). It has been said that police power is the most essential of government powers, at times the most insistent, and always one of the least limitable of the powers of government (Ruby vs. Provincial Board, 39 PhiL 660; Ichong vs. Hernandez, 1,7995, May 31, 1957). This power embraces the whole system of public regulation (U.S. vs. Linsuya Fan, 10 PhiL 104). The Supreme Court has said that police power is so far-reaching in scope that it has almost become impossible to limit its sweep. As it derives its existence from the very existence of the state itself, it does not need to be expressed or defined in its scope. Being coextensive with self-preservation and survival itself, it is the most positive and active of all governmental processes, the most essential insistent and illimitable Especially it is so under the modern democratic framework where the demands of society and nations have multiplied to almost unimaginable proportions. The field and scope of police power have become almost boundless, just as the fields of public interest and public welfare have become almost all embracing and have transcended human foresight. Since the Courts cannot foresee the needs and demands of public interest and welfare, they cannot delimit beforehand the extent or scope of the police power by which and through which the state seeks to attain or achieve public interest and welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957).chanroblesvirtualawlibrary chanrobles virtual law library The police power being the most active power of the government and the due process clause being the broadest station on governmental power, the conflict between this power of government and the due process clause of the Constitution is oftentimes inevitable.chanroblesvirtualawlibrary chanrobles virtual law library It will be seen from the foregoing authorities that police power is usually exercised in the form of mere regulation or restriction in the use of liberty or property for the promotion of the general welfare. It

does not involve the taking or confiscation of property with the exception of a few cases where there is a necessity to confiscate private property in order to destroy it for the purpose of protecting the peace and order and of promoting the general welfare as for instance, the confiscation of an illegally possessed article, such as opium and firearms.chanroblesvirtualawlibrary chanrobles virtual law library It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon City is not a mere police regulation but an outright confiscation. It deprives a person of his private property without due process of law, nay, even without compensation. In sustaining the decision of the respondent court, we are not unmindful of the heavy burden shouldered by whoever challenges the validity of duly enacted legislation whether national or local As early as 1913, this Court ruled in Case v. Board of Health (24 PhiL 250) that the courts resolve every presumption in favor of validity and, more so, where the ma corporation asserts that the ordinance was enacted to promote the common good and general welfare.chanroblesvirtualawlibrary chanrobles virtual law library In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v. City Mayor of Manila (20 SCRA 849) the Court speaking through the then Associate Justice and now Chief Justice Enrique M. Fernando stated Primarily what calls for a reversal of such a decision is the a of any evidence to offset the presumption of validity that attaches to a statute or ordinance. As was expressed categorically by Justice Malcolm 'The presumption is all in favor of validity. ... The action of the elected representatives of the people cannot be lightly set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular ... municipality and with all the facts and lances which surround the subject and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well-being of the people. ... The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation. (U.S. v. Salaveria (1918], 39 Phil. 102, at p. 111. There was an affirmation of the presumption of validity of municipal ordinance as announced in the leading Salaveria decision in Ebona v. Daet, [1950]85 Phil. 369.) chanrobles virtual law library We have likewise considered the principles earlier stated in Case v. Board of Health supra : chanrobles virtual law library ... Under the provisions of municipal charters which are known as the general welfare clauses, a city, by virtue of its police power, may adopt ordinances to the peace, safety, health, morals and the best and highest interests of the municipality. It is a well-settled principle, growing out of the nature of wellordered and society, that every holder of property, however absolute and may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. An property in the state is held subject to its general regulations, which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such

reasonable restraints and regulations, established by law, as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient. The state, under the police power, is possessed with plenary power to deal with all matters relating to the general health, morals, and safety of the people, so long as it does not contravene any positive inhibition of the organic law and providing that such power is not exercised in such a manner as to justify the interference of the courts to prevent positive wrong and oppression. but find them not applicable to the facts of this case.chanroblesvirtualawlibrary chanrobles virtual law library There is no reasonable relation between the setting aside of at least six (6) percent of the total area of an private cemeteries for charity burial grounds of deceased paupers and the promotion of health, morals, good order, safety, or the general welfare of the people. The ordinance is actually a taking without compensation of a certain area from a private cemetery to benefit paupers who are charges of the municipal corporation. Instead of building or maintaining a public cemetery for this purpose, the city passes the burden to private cemeteries.chanroblesvirtualawlibrary chanrobles virtual law library The expropriation without compensation of a portion of private cemeteries is not covered by Section 12(t) of Republic Act 537, the Revised Charter of Quezon City which empowers the city council to prohibit the burial of the dead within the center of population of the city and to provide for their burial in a proper place subject to the provisions of general law regulating burial grounds and cemeteries. When the Local Government Code, Batas Pambansa Blg. 337 provides in Section 177 (q) that a Sangguniang panlungsod may "provide for the burial of the dead in such place and in such manner as prescribed by law or ordinance" it simply authorizes the city to provide its own city owned land or to buy or expropriate private properties to construct public cemeteries. This has been the law and practise in the past. It continues to the present. Expropriation, however, requires payment of just compensation. The questioned ordinance is different from laws and regulations requiring owners of subdivisions to set aside certain areas for streets, parks, playgrounds, and other public facilities from the land they sell to buyers of subdivision lots. The necessities of public safety, health, and convenience are very clear from said requirements which are intended to insure the development of communities with salubrious and wholesome environments. The beneficiaries of the regulation, in turn, are made to pay by the subdivision developer when individual lots are sold to home-owners.chanroblesvirtualawlibrary chanrobles virtual law library As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers of the municipal corporation, not on any express provision of law as statutory basis of their exercise of power. The clause has always received broad and liberal interpretation but we cannot stretch it to cover this particular taking. Moreover, the questioned ordinance was passed after Himlayang Pilipino, Inc. had incorporated. received necessary licenses and permits and commenced operating. The sequestration of six percent of the cemetery cannot even be considered as having been impliedly acknowledged by the private respondent when it accepted the permits to commence operations.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the petition for review is hereby DISMISSED. The decision of the respondent court is affirmed.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 74457 March 20, 1987 RESTITUTO YNOT, Petitioner, vs. INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO CITY, Respondents.

CRUZ, J.: chanrobles virtual law library The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike - but hear me first!" It is this cry that the petitioner in effect repeats here as he challenges the constitutionality of Executive Order No. 626-A.chanroblesvirtualawlibrary chanrobles virtual law library The said executive order reads in full as follows: WHEREAS, the President has given orders prohibiting the interprovincial movement of carabaos and the slaughtering of carabaos not complying with the requirements of Executive Order No. 626 particularly with respect to age; chanrobles virtual law library WHEREAS, it has been observed that despite such orders the violators still manage to circumvent the prohibition against inter-provincial movement of carabaos by transporting carabeef instead; and chanrobles virtual law library WHEREAS, in order to achieve the purposes and objectives of Executive Order No. 626 and the prohibition against interprovincial movement of carabaos, it is necessary to strengthen the said Executive Order and provide for the disposition of the carabaos and carabeef subject of the violation; chanrobles virtual law library NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby promulgate the following: chanrobles virtual law library

SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no carabao regardless of age, sex, physical condition or purpose and no carabeef shall be transported from one province to another. The carabao or carabeef transported in violation of this Executive Order as amended shall be subject to confiscation and forfeiture by the government, to be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may ay see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos.chanroblesvirtualawlibrary chanrobles virtual law library SECTION 2. This Executive Order shall take effect immediately.chanroblesvirtualawlibrary chanrobles virtual law library Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen hundred and eighty. (SGD.) FERDINAND E. MARCOS President Republic of the Philippines The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13, 1984, when they were confiscated by the police station commander of Barotac Nuevo, Iloilo, for violation of the above measure. 1 The petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of a supersedeas bond of P12,000.00. After considering the merits of the case, the court sustained the confiscation of the carabaos and, since they could no longer be produced, ordered the confiscation of the bond. The court also declined to rule on the constitutionality of the executive order, as raise by the petitioner, for lack of authority and also for its presumed validity. 2 chanrobles virtual law library The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld the trial court, ** and he has now come before us in this petition for review on certiorari. The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright confiscation of the carabao or carabeef being transported across provincial boundaries. His claim is that the penalty is invalid because it is imposed without according the owner a right to be heard before a competent and impartial court as guaranteed by due process. He complains that the measure should not have been presumed, and so sustained, as constitutional. There is also a challenge to the improper exercise of the legislative power by the former President under Amendment No. 6 of the 1973 Constitution. 4 chanrobles virtual law library While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable here. The question raised there was the necessity of the previous publication of the measure in the Official Gazette before it could be considered enforceable. We imposed the requirement then on the basis of due process of law. In doing so, however, this Court did not, as contended by the Solicitor General,

impliedly affirm the constitutionality of Executive Order No. 626-A. That is an entirely different matter.chanroblesvirtualawlibrary chanrobles virtual law library This Court has declared that while lower courts should observe a becoming modesty in examining constitutional questions, they are nonetheless not prevented from resolving the same whenever warranted, subject only to review by the highest tribunal. 6 We have jurisdiction under the Constitution to "review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may provide," final judgments and orders of lower courts in, among others, all cases involving the constitutionality of certain measures. 7 This simply means that the resolution of such cases may be made in the first instance by these lower courts.chanroblesvirtualawlibrary chanrobles virtual law library And while it is true that laws are presumed to be constitutional, that presumption is not by any means conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the need to declare them so, then "will be the time to make the hammer fall, and heavily," 8 to recall Justice Laurel's trenchant warning. Stated otherwise, courts should not follow the path of least resistance by simply presuming the constitutionality of a law when it is questioned. On the contrary, they should probe the issue more deeply, to relieve the abscess, paraphrasing another distinguished jurist, 9 and so heal the wound or excise the affliction.chanroblesvirtualawlibrary chanrobles virtual law library Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of the bench, especially this Court.chanroblesvirtualawlibrary chanrobles virtual law library The challenged measure is denominated an executive order but it is really presidential decree, promulgating a new rule instead of merely implementing an existing law. It was issued by President Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise of his legislative authority under Amendment No. 6. It was provided thereunder that whenever in his judgment there existed a grave emergency or a threat or imminence thereof or whenever the legislature failed or was unable to act adequately on any matter that in his judgment required immediate action, he could, in order to meet the exigency, issue decrees, orders or letters of instruction that were to have the force and effect of law. As there is no showing of any exigency to justify the exercise of that extraordinary power then, the petitioner has reason, indeed, to question the validity of the executive order. Nevertheless, since the determination of the grounds was supposed to have been made by the President "in his judgment, " a phrase that will lead to protracted discussion not really necessary at this time, we reserve resolution of this matter until a more appropriate occasion. For the nonce, we confine ourselves to the more fundamental question of due process.chanroblesvirtualawlibrary chanrobles virtual law library It is part of the art of constitution-making that the provisions of the charter be cast in precise and unmistakable language to avoid controversies that might arise on their correct interpretation. That is the Ideal. In the case of the due process clause, however, this rule was deliberately not followed and the wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was submitted

in the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights, who forcefully argued against it. He was sustained by the body. 10 The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt necessary because due process is not, like some provisions of the fundamental law, an "iron rule" laying down an implacable and immutable command for all seasons and all persons. Flexibility must be the best virtue of the guaranty. The very elasticity of the due process clause was meant to make it adapt easily to every situation, enlarging or constricting its protection as the changing times and circumstances may require.chanroblesvirtualawlibrary chanrobles virtual law library Aware of this, the courts have also hesitated to adopt their own specific description of due process lest they confine themselves in a legal straitjacket that will deprive them of the elbow room they may need to vary the meaning of the clause whenever indicated. Instead, they have preferred to leave the import of the protection open-ended, as it were, to be "gradually ascertained by the process of inclusion and exclusion in the course of the decision of cases as they arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example, would go no farther than to define due process - and in so doing sums it all up - as nothing more and nothing less than "the embodiment of the sporting Idea of fair play." 12 When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would thenceforth not proceed against the life liberty or property of any of its subjects except by the lawful judgment of his peers or the law of the land, they thereby won for themselves and their progeny that splendid guaranty of fairness that is now the hallmark of the free society. The solemn vow that King John made at Runnymede in 1215 has since then resounded through the ages, as a ringing reminder to all rulers, benevolent or base, that every person, when confronted by the stern visage of the law, is entitled to have his say in a fair and open hearing of his cause.chanroblesvirtualawlibrary chanrobles virtual law library The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear "the other side" before an opinion is formed or a decision is made by those who sit in judgment. Obviously, one side is only one-half of the question; the other half must also be considered if an impartial verdict is to be reached based on an informed appreciation of the issues in contention. It is indispensable that the two sides complement each other, as unto the bow the arrow, in leading to the correct ruling after examination of the problem not from one or the other perspective only but in its totality. A judgment based on less that this full appraisal, on the pretext that a hearing is unnecessary or useless, is tainted with the vice of bias or intolerance or ignorance, or worst of all, in repressive regimes, the insolence of power.chanroblesvirtualawlibrary chanrobles virtual law library The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be dispensed with because they are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial system that the jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to the rule of law and the ancient rudiments of fair play. We have consistently declared that every person, faced by the awesome power of the State, is entitled to "the law of the land," which Daniel Webster described almost two hundred years ago in the

famous Dartmouth College Case, 14 as "the law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial." It has to be so if the rights of every person are to be secured beyond the reach of officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause into a worn and empty catchword.chanroblesvirtualawlibrary chanrobles virtual law library This is not to say that notice and hearing are imperative in every case for, to be sure, there are a number of admitted exceptions. The conclusive presumption, for example, bars the admission of contrary evidence as long as such presumption is based on human experience or there is a rational connection between the fact proved and the fact ultimately presumed therefrom. 15 There are instances when the need for expeditions action will justify omission of these requisites, as in the summary abatement of a nuisance per se, like a mad dog on the loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people. Pornographic materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16 Filthy restaurants may be summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. 17 In such instances, previous judicial hearing may be omitted without violation of due process in view of the nature of the property involved or the urgency of the need to protect the general welfare from a clear and present danger.chanroblesvirtualawlibrary chanrobles virtual law library The protection of the general welfare is the particular function of the police power which both restraints and is restrained by due process. The police power is simply defined as the power inherent in the State to regulate liberty and property for the promotion of the general welfare. 18 By reason of its function, it extends to all the great public needs and is described as the most pervasive, the least limitable and the most demanding of the three inherent powers of the State, far outpacing taxation and eminent domain. The individual, as a member of society, is hemmed in by the police power, which affects him even before he is born and follows him still after he is dead - from the womb to beyond the tomb - in practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome intrusion. Even so, as long as the activity or the property has some relevance to the public welfare, its regulation under the police power is not only proper but necessary. And the justification is found in the venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non laedas, which call for the subordination of individual interests to the benefit of the greater number.chanroblesvirtualawlibrary chanrobles virtual law library It is this power that is now invoked by the government to justify Executive Order No. 626-A, amending the basic rule in Executive Order No. 626, prohibiting the slaughter of carabaos except under certain conditions. The original measure was issued for the reason, as expressed in one of its Whereases, that "present conditions demand that the carabaos and the buffaloes be conserved for the benefit of the small farmers who rely on them for energy needs." We affirm at the outset the need for such a measure. In the face of the worsening energy crisis and the increased dependence of our farms on these traditional beasts of burden, the government would have been remiss, indeed, if it had not taken steps to protect and preserve them.chanroblesvirtualawlibrary chanrobles virtual law library

A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration, branding and slaughter of large cattle was claimed to be a deprivation of property without due process of law. The defendant had been convicted thereunder for having slaughtered his own carabao without the required permit, and he appealed to the Supreme Court. The conviction was affirmed. The law was sustained as a valid police measure to prevent the indiscriminate killing of carabaos, which were then badly needed by farmers. An epidemic had stricken many of these animals and the reduction of their number had resulted in an acute decline in agricultural output, which in turn had caused an incipient famine. Furthermore, because of the scarcity of the animals and the consequent increase in their price, cattle-rustling had spread alarmingly, necessitating more effective measures for the registration and branding of these animals. The Court held that the questioned statute was a valid exercise of the police power and declared in part as follows: 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. ...chanroblesvirtualawlibrary chanrobles virtual law library From what has been said, we think it is clear that the enactment of the provisions of the statute under consideration was required by "the interests of the public generally, as distinguished from those of a particular class" and that the prohibition of the slaughter of carabaos for human consumption, so long as these animals are fit for agricultural work or draft purposes was a "reasonably necessary" limitation on private ownership, to protect the community from the loss of the services of such animals by their slaughter by improvident owners, tempted either by greed of momentary gain, or by a desire to enjoy the luxury of animal food, even when by so doing the productive power of the community may be measurably and dangerously affected. In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor man's tractor, so to speak, has a direct relevance to the public welfare and so is a lawful subject of Executive Order No. 626. The method chosen in the basic measure is also reasonably necessary for the purpose sought to be achieved and not unduly oppressive upon individuals, again following the abovecited doctrine. There is no doubt that by banning the slaughter of these animals except where they are at least seven years old if male and eleven years old if female upon issuance of the necessary permit, the executive order will be conserving those still fit for farm work or breeding and preventing their improvident depletion.chanroblesvirtualawlibrary chanrobles virtual law library But while conceding that the amendatory measure has the same lawful subject as the original executive order, we cannot say with equal certainty that it complies with the second requirement, viz., that there be a lawful method. We note that to strengthen the original measure, Executive Order No. 626-A imposes an absolute ban not on the slaughter of the carabaos but on their movement, providing that "no carabao regardless of age, sex, physical condition or purpose (sic) and no carabeef shall be transported from one province to another." The object of the prohibition escapes us. The reasonable connection

between the means employed and the purpose sought to be achieved by the questioned measure is missing chanrobles virtual law library We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their indiscriminate slaughter, considering that they can be killed anywhere, with no less difficulty in one province than in another. Obviously, retaining the carabaos in one province will not prevent their slaughter there, any more than moving them to another province will make it easier to kill them there. As for the carabeef, the prohibition is made to apply to it as otherwise, so says executive order, it could be easily circumvented by simply killing the animal. Perhaps so. However, if the movement of the live animals for the purpose of preventing their slaughter cannot be prohibited, it should follow that there is no reason either to prohibit their transfer as, not to be flippant dead meat.chanroblesvirtualawlibrary chanrobles virtual law library Even if a reasonable relation between the means and the end were to be assumed, we would still have to reckon with the sanction that the measure applies for violation of the prohibition. The penalty is outright confiscation of the carabao or carabeef being transported, to be meted out by the executive authorities, usually the police only. In the Toribio Case, the statute was sustained because the penalty prescribed was fine and imprisonment, to be imposed by the court after trial and conviction of the accused. Under the challenged measure, significantly, no such trial is prescribed, and the property being transported is immediately impounded by the police and declared, by the measure itself, as forfeited to the government.chanroblesvirtualawlibrary chanrobles virtual law library In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were returned to the petitioner only after he had filed a complaint for recovery and given a supersedeas bond of P12,000.00, which was ordered confiscated upon his failure to produce the carabaos when ordered by the trial court. The executive order defined the prohibition, convicted the petitioner and immediately imposed punishment, which was carried out forthright. The measure struck at once and pounced upon the petitioner without giving him a chance to be heard, thus denying him the centuries-old guaranty of elementary fair play.chanroblesvirtualawlibrary chanrobles virtual law library It has already been remarked that there are occasions when notice and hearing may be validly dispensed with notwithstanding the usual requirement for these minimum guarantees of due process. It is also conceded that summary action may be validly taken in administrative proceedings as procedural due process is not necessarily judicial only. 20 In the exceptional cases accepted, however. there is a justification for the omission of the right to a previous hearing, to wit, the immediacy of the problem sought to be corrected and the urgency of the need to correct it.chanroblesvirtualawlibrary chanrobles virtual law library In the case before us, there was no such pressure of time or action calling for the petitioner's peremptory treatment. The properties involved were not even inimical per se as to require their instant destruction. There certainly was no reason why the offense prohibited by the executive order should not have been proved first in a court of justice, with the accused being accorded all the rights safeguarded to him under the Constitution. Considering that, as we held in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in nature, the violation thereof should have been pronounced not

by the police only but by a court of justice, which alone would have had the authority to impose the prescribed penalty, and only after trial and conviction of the accused.chanroblesvirtualawlibrary chanrobles virtual law library We also mark, on top of all this, the questionable manner of the disposition of the confiscated property as prescribed in the questioned executive order. It is there authorized that the seized property shall "be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos." (Emphasis supplied.) The phrase "may see fit" is an extremely generous and dangerous condition, if condition it is. It is laden with perilous opportunities for partiality and abuse, and even corruption. One searches in vain for the usual standard and the reasonable guidelines, or better still, the limitations that the said officers must observe when they make their distribution. There is none. Their options are apparently boundless. Who shall be the fortunate beneficiaries of their generosity and by what criteria shall they be chosen? Only the officers named can supply the answer, they and they alone may choose the grantee as they see fit, and in their own exclusive discretion. Definitely, there is here a "roving commission," a wide and sweeping authority that is not "canalized within banks that keep it from overflowing," in short, a clearly profligate and therefore invalid delegation of legislative powers.chanroblesvirtualawlibrary chanrobles virtual law library To sum up then, we find that the challenged measure is an invalid exercise of the police power because the method employed to conserve the carabaos is not reasonably necessary to the purpose of the law and, worse, is unduly oppressive. Due process is violated because the owner of the property confiscated is denied the right to be heard in his defense and is immediately condemned and punished. The conferment on the administrative authorities of the power to adjudge the guilt of the supposed offender is a clear encroachment on judicial functions and militates against the doctrine of separation of powers. There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein who are granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons, we hereby declare Executive Order No. 626-A unconstitutional.chanroblesvirtualawlibrary chanrobles virtual law library We agree with the respondent court, however, that the police station commander who confiscated the petitioner's carabaos is not liable in damages for enforcing the executive order in accordance with its mandate. The law was at that time presumptively valid, and it was his obligation, as a member of the police, to enforce it. It would have been impertinent of him, being a mere subordinate of the President, to declare the executive order unconstitutional and, on his own responsibility alone, refuse to execute it. Even the trial court, in fact, and the Court of Appeals itself did not feel they had the competence, for all their superior authority, to question the order we now annul.chanroblesvirtualawlibrary chanrobles virtual law library The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them, this case would never have reached us and the taking of his property under the challenged measure would have become a fait accompli despite its invalidity. We commend him for his spirit. Without the present

challenge, the matter would have ended in that pump boat in Masbate and another violation of the Constitution, for all its obviousness, would have been perpetrated, allowed without protest, and soon forgotten in the limbo of relinquished rights.chanroblesvirtualawlibrary chanrobles virtual law library The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke them whenever they are ignored or violated. Rights are but weapons on the wall if, like expensive tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of protection. They become truly meaningful, and fulfill the role assigned to them in the free society, if they are kept bright and sharp with use by those who are not afraid to assert them.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed above, the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the amount thereof is ordered restored to the petitioner. No costs.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. REQUISITES OF JUDICIAL DUE PROCESS Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-11390 March 26, 1918 EL BANCO ESPAOL-FILIPINO, Plaintiff-Appellant , vs. VICENTE PALANCA, administrator of the estate of Engracio Palanca Tanquinyeng, Defendant-Appellant. STREET, J.: chanrobles virtual law library This action was instituted upon March 31, 1908, by "El Banco Espanol-Filipino" to foreclose a mortgage upon various parcels of real property situated in the city of Manila. The mortgage in question is dated June 16, 1906, and was executed by the original defendant herein, Engracio Palanca Tanquinyeng y Limquingco, as security for a debt owing by him to the bank. Upon March 31, 1906, the debt amounted to P218,294.10 and was drawing interest at the rate of 8 per centum per annum, payable at the end of each quarter. It appears that the parties to this mortgage at that time estimated the value of the property in question at P292,558, which was about P75,000 in excess of the indebtedness. After the execution of this instrument by the mortgagor, he returned to China which appears to have been his native country; and he there died, upon January 29, 1810, without again returning to the Philippine Islands.chanroblesvirtualawlibrary chanrobles virtual law library As the defendant was a nonresident at the time of the institution of the present action, it was necessary for the plaintiff in the foreclosure proceeding to give notice to the defendant by publication pursuant to

section 399 of the Code of Civil Procedure. An order for publication was accordingly obtained from the court, and publication was made in due form in a newspaper of the city of Manila. At the same time that the order of the court should deposit in the post office in a stamped envelope a copy of the summons and complaint directed to the defendant at his last place of residence, to wit, the city of Amoy, in the Empire of China. This order was made pursuant to the following provision contained in section 399 of the Code of Civil Procedure: In case of publication, where the residence of a nonresident or absent defendant is known, the judge must direct a copy of the summons and complaint to be forthwith deposited by the clerk in the postoffice, postage prepaid, directed to the person to be served, at his place of residence Whether the clerk complied with this order does not affirmatively appear. There is, however, among the papers pertaining to this case, an affidavit, dated April 4, 1908, signed by Bernardo Chan y Garcia, an employee of the attorneys of the bank, showing that upon that date he had deposited in the Manila post-office a registered letter, addressed to Engracio Palanca Tanquinyeng, at Manila, containing copies of the complaint, the plaintiff's affidavit, the summons, and the order of the court directing publication as aforesaid. It appears from the postmaster's receipt that Bernardo probably used an envelope obtained from the clerk's office, as the receipt purports to show that the letter emanated from the office.chanroblesvirtualawlibrary chanrobles virtual law library The cause proceeded in usual course in the Court of First Instance; and the defendant not having appeared, judgment was, upon July 2, 1908, taken against him by default. Upon July 3, 1908, a decision was rendered in favor of the plaintiff. In this decision it was recited that publication had been properly made in a periodical, but nothing was said about this notice having been given mail. The court, upon this occasion, found that the indebtedness of the defendant amounted to P249,355. 32, with interest from March 31, 1908. Accordingly it was ordered that the defendant should, on or before July 6, 1908, deliver said amount to the clerk of the court to be applied to the satisfaction of the judgment, and it was declared that in case of the failure of the defendant to satisfy the judgment within such period, the mortgage property located in the city of Manila should be exposed to public sale. The payment contemplated in said order was never made; and upon July 8, 1908, the court ordered the sale of the property. The sale took place upon July 30, 1908, and the property was bought in by the bank for the sum of P110,200. Upon August 7, 1908, this sale was confirmed by the court.chanroblesvirtualawlibrary chanrobles virtual law library About seven years after the confirmation of this sale, or to the precise, upon June 25, 1915, a motion was made in this cause by Vicente Palanca, as administrator of the estate of the original defendant, Engracio Palanca Tanquinyeng y Limquingco, wherein the applicant requested the court to set aside the order of default of July 2, 1908, and the judgment rendered upon July 3, 1908, and to vacate all the proceedings subsequent thereto. The basis of this application, as set forth in the motion itself, was that the order of default and the judgment rendered thereon were void because the court had never acquired jurisdiction over the defendant or over the subject of the action.chanroblesvirtualawlibrary chanrobles virtual law library

At the hearing in the court below the application to vacate the judgment was denied, and from this action of the court Vicente Planca, as administrator of the estate of the original defendant, has appealed. No other feature of the case is here under consideration than such as related to the action of the court upon said motion.chanroblesvirtualawlibrary chanrobles virtual law library The case presents several questions of importance, which will be discussed in what appears to be the sequence of most convenient development. In the first part of this opinion we shall, for the purpose of argument, assume that the clerk of the Court of First Instance did not obey the order of the court in the matter of mailing the papers which he was directed to send to the defendant in Amoy; and in this connection we shall consider, first, whether the court acquired the necessary jurisdiction to enable it to proceed with the foreclosure of the mortgage and, secondly, whether those proceedings were conducted in such manner as to constitute due process of law.chanroblesvirtualawlibrary chanrobles virtual law library The word "jurisdiction," as applied to the faculty of exercising judicial power, is used in several different, though related, senses since it may have reference (1) to the authority of the court to entertain a particular kind of action or to administer a particular kind of relief, or it may refer to the power of the court over the parties, or (2) over the property which is the subject to the litigation.chanroblesvirtualawlibrary chanrobles virtual law library The sovereign authority which organizes a court determines the nature and extent of its powers in general and thus fixes its competency or jurisdiction with reference to the actions which it may entertain and the relief it may grant.chanroblesvirtualawlibrary chanrobles virtual law library Jurisdiction over the person is acquired by the voluntary appearance of a party in court and his submission to its authority, or it is acquired by the coercive power of legal process exerted over the person.chanroblesvirtualawlibrary chanrobles virtual law library Jurisdiction over the property which is the subject of the litigation may result either from a seizure of the property under legal process, whereby it is brought into the actual custody of the law, or it may result from the institution of legal proceedings wherein, under special provisions of law, the power of the court over the property is recognized and made effective. In the latter case the property, though at all times within the potential power of the court, may never be taken into actual custody at all. An illustration of the jurisdiction acquired by actual seizure is found in attachment proceedings, where the property is seized at the beginning of the action, or some subsequent stage of its progress, and held to abide the final event of the litigation. An illustration of what we term potential jurisdiction over the res, is found in the proceeding to register the title of land under our system for the registration of land. Here the court, without taking actual physical control over the property assumes, at the instance of some person claiming to be owner, to exercise a jurisdiction in rem over the property and to adjudicate the title in favor of the petitioner against all the world.chanroblesvirtualawlibrary chanrobles virtual law library In the terminology of American law the action to foreclose a mortgage is said to be a proceeding quasi in rem, by which is expressed the idea that while it is not strictly speaking an action in rem yet it

partakes of that nature and is substantially such. The expression "action in rem" is, in its narrow application, used only with reference to certain proceedings in courts of admiralty wherein the property alone is treated as responsible for the claim or obligation upon which the proceedings are based. The action quasi rem differs from the true action in rem in the circumstance that in the former an individual is named as defendant, and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property. All proceedings having for their sole object the sale or other disposition of the property of the defendant, whether by attachment, foreclosure, or other form of remedy, are in a general way thus designated. The judgment entered in these proceedings is conclusive only between the parties.chanroblesvirtualawlibrary chanrobles virtual law library In speaking of the proceeding to foreclose a mortgage the author of a well known treaties, has said: Though nominally against person, such suits are to vindicate liens; they proceed upon seizure; they treat property as primarily indebted; and, with the qualification above-mentioned, they are substantially property actions. In the civil law, they are styled hypothecary actions, and their sole object is the enforcement of the lien against the res; in the common law, they would be different in chancery did not treat the conditional conveyance as a mere hypothecation, and the creditor's right ass an equitable lien; so, in both, the suit is real action so far as it is against property, and seeks the judicial recognition of a property debt, and an order for the sale of the res. (Waples, Proceedings In Rem. sec. 607.) It is true that in proceedings of this character, if the defendant for whom publication is made appears, the action becomes as to him a personal action and is conducted as such. This, however, does not affect the proposition that where the defendant fails to appear the action is quasi in rem; and it should therefore be considered with reference to the principles governing actions in rem.chanroblesvirtualawlibrary chanrobles virtual law library There is an instructive analogy between the foreclosure proceeding and an action of attachment, concerning which the Supreme Court of the United States has used the following language: If the defendant appears, the cause becomes mainly a suit in personam, with the added incident, that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But, if there is no appearance of the defendant, and no service of process on him, the case becomes, in its essential nature, a proceeding in rem, the only effect of which is to subject the property attached to the payment of the defendant which the court may find to be due to the plaintiff. (Cooper vs. Reynolds, 10 Wall., 308.) In an ordinary attachment proceeding, if the defendant is not personally served, the preliminary seizure is to, be considered necessary in order to confer jurisdiction upon the court. In this case the lien on the property is acquired by the seizure; and the purpose of the proceedings is to subject the property to that lien. If a lien already exists, whether created by mortgage, contract, or statute, the preliminary seizure is not necessary; and the court proceeds to enforce such lien in the manner provided by law precisely as though the property had been seized upon attachment. (Roller vs. Holly, 176 U. S., 398, 405; 44 L. ed., 520.) It results that the mere circumstance that in an attachment the property may be seized at the inception of the proceedings, while in the foreclosure suit it is not taken into legal custody until the

time comes for the sale, does not materially affect the fundamental principle involved in both cases, which is that the court is here exercising a jurisdiction over the property in a proceeding directed essentially in rem.chanroblesvirtualawlibrary chanrobles virtual law library Passing now to a consideration of the jurisdiction of the Court of First Instance in a mortgage foreclosure, it is evident that the court derives its authority to entertain the action primarily from the statutes organizing the court. The jurisdiction of the court, in this most general sense, over the cause of action is obvious and requires no comment. Jurisdiction over the person of the defendant, if acquired at all in such an action, is obtained by the voluntary submission of the defendant or by the personal service of process upon him within the territory where the process is valid. If, however, the defendant is a nonresident and, remaining beyond the range of the personal process of the court, refuses to come in voluntarily, the court never acquires jurisdiction over the person at all. Here the property itself is in fact the sole thing which is impleaded and is the responsible object which is the subject of the exercise of judicial power. It follows that the jurisdiction of the court in such case is based exclusively on the power which, under the law, it possesses over the property; and any discussion relative to the jurisdiction of the court over the person of the defendant is entirely apart from the case. The jurisdiction of the court over the property, considered as the exclusive object of such action, is evidently based upon the following conditions and considerations, namely: (1) that the property is located within the district; (2) that the purpose of the litigation is to subject the property by sale to an obligation fixed upon it by the mortgage; and (3) that the court at a proper stage of the proceedings takes the property into custody, if necessary, and expose it to sale for the purpose of satisfying the mortgage debt. An obvious corollary is that no other relief can be granted in this proceeding than such as can be enforced against the property.chanroblesvirtualawlibrary chanrobles virtual law library We may then, from what has been stated, formulated the following proposition relative to the foreclosure proceeding against the property of a nonresident mortgagor who fails to come in and submit himself personally to the jurisdiction of the court: (I) That the jurisdiction of the court is derived from the power which it possesses over the property; (II) that jurisdiction over the person is not acquired and is nonessential; (III) that the relief granted by the court must be limited to such as can be enforced against the property itself.chanroblesvirtualawlibrary chanrobles virtual law library It is important that the bearing of these propositions be clearly apprehended, for there are many expressions in the American reports from which it might be inferred that the court acquires personal jurisdiction over the person of the defendant by publication and notice; but such is not the case. In truth the proposition that jurisdiction over the person of a nonresident cannot be acquired by publication and notice was never clearly understood even in the American courts until after the decision had been rendered by the Supreme Court of the United States in the leading case of Pennoyer vs. Neff (95 U. S. 714; 24 L. ed., 565). In the light of that decision, and of other decisions which have subsequently been rendered in that and other courts, the proposition that jurisdiction over the person cannot be thus acquired by publication and notice is no longer open to question; and it is now fully established that a personal judgment upon constructive or substituted service against a nonresident who does not appear is wholly invalid. This doctrine applies to all kinds of constructive or substituted process, including service by publication and personal service outside of the jurisdiction in which the judgment is

rendered; and the only exception seems to be found in the case where the nonresident defendant has expressly or impliedly consented to the mode of service. (Note to Raher vs. Raher, 35 L. R. A. [N. S. ], 292; see also 50 L .R. A., 585; 35 L. R. A. [N. S.], 312 chanrobles virtual law library The idea upon which the decision in Pennoyer vs. Neff (supra) proceeds is that the process from the tribunals of one State cannot run into other States or countries and that due process of law requires that the defendant shall be brought under the power of the court by service of process within the State, or by his voluntary appearance, in order to authorize the court to pass upon the question of his personal liability. The doctrine established by the Supreme Court of the United States on this point, being based upon the constitutional conception of due process of law, is binding upon the courts of the Philippine Islands. Involved in this decision is the principle that in proceedings in rem or quasi in rem against a nonresident who is not served personally within the state, and who does not appear, the relief must be confined to the res, and the court cannot lawfully render a personal judgment against him. (Dewey vs. Des Moines, 173 U. S., 193; 43 L. ed., 665; Heidritter vs. Elizabeth Oil Cloth Co., 112 U. S., 294; 28 L. ed., 729.) Therefore in an action to foreclose a mortgage against a nonresident, upon whom service has been effected exclusively by publication, no personal judgment for the deficiency can be entered. (Latta vs. Tutton, 122 Cal., 279; Blumberg vs. Birch, 99 Cal., 416.) chanrobles virtual law library It is suggested in the brief of the appellant that the judgment entered in the court below offends against the principle just stated and that this judgment is void because the court in fact entered a personal judgment against the absent debtor for the full amount of the indebtedness secured by the mortgage. We do not so interpret the judgment.chanroblesvirtualawlibrary chanrobles virtual law library In a foreclosure proceeding against a nonresident owner it is necessary for the court, as in all cases of foreclosure, to ascertain the amount due, as prescribed in section 256 of the Code of Civil Procedure, and to make an order requiring the defendant to pay the money into court. This step is a necessary precursor of the order of sale. In the present case the judgment which was entered contains the following words: Because it is declared that the said defendant Engracio Palanca Tanquinyeng y Limquingco, is indebted in the amount of P249,355.32, plus the interest, to the 'Banco Espanol-Filipino' . . . therefore said appellant is ordered to deliver the above amount etc., etc. This is not the language of a personal judgment. Instead it is clearly intended merely as a compliance with the requirement that the amount due shall be ascertained and that the evidence of this it may be observed that according to the Code of Civil Procedure a personal judgment against the debtor for the deficiency is not to be rendered until after the property has been sold and the proceeds applied to the mortgage debt. (sec. 260).chanroblesvirtualawlibrary chanrobles virtual law library The conclusion upon this phase of the case is that whatever may be the effect in other respects of the failure of the clerk of the Court of First Instance to mail the proper papers to the defendant in Amoy, China, such irregularity could in no wise impair or defeat the jurisdiction of the court, for in our opinion that jurisdiction rest upon a basis much more secure than would be supplied by any form of

notice that could be given to a resident of a foreign country.chanroblesvirtualawlibrary chanrobles virtual law library Before leaving this branch of the case, we wish to observe that we are fully aware that many reported cases can be cited in which it is assumed that the question of the sufficiency of publication or notice in a case of this kind is a question affecting the jurisdiction of the court, and the court is sometimes said to acquire jurisdiction by virtue of the publication. This phraseology was undoubtedly originally adopted by the court because of the analogy between service by the publication and personal service of process upon the defendant; and, as has already been suggested, prior to the decision of Pennoyer vs. Neff (supra) the difference between the legal effects of the two forms of service was obscure. It is accordingly not surprising that the modes of expression which had already been molded into legal tradition before that case was decided have been brought down to the present day. But it is clear that the legal principle here involved is not effected by the peculiar language in which the courts have expounded their ideas.chanroblesvirtualawlibrary chanrobles virtual law library We now proceed to a discussion of the question whether the supposed irregularity in the proceedings was of such gravity as to amount to a denial of that "due process of law" which was secured by the Act of Congress in force in these Islands at the time this mortgage was foreclosed. (Act of July 1, 1902, sec. 5.) In dealing with questions involving the application of the constitutional provisions relating to due process of law the Supreme Court of the United States has refrained from attempting to define with precision the meaning of that expression, the reason being that the idea expressed therein is applicable under so many diverse conditions as to make any attempt ay precise definition hazardous and unprofitable. As applied to a judicial proceeding, however, it may be laid down with certainty that the requirement of due process is satisfied if the following conditions are present, namely; (1) There must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an opportunity to be heard; and (4) judgment must be rendered upon lawful hearing.chanroblesvirtualawlibrary chanrobles virtual law library Passing at once to the requisite that the defendant shall have an opportunity to be heard, we observe that in a foreclosure case some notification of the proceedings to the nonresident owner, prescribing the time within which appearance must be made, is everywhere recognized as essential. To answer this necessity the statutes generally provide for publication, and usually in addition thereto, for the mailing of notice to the defendant, if his residence is known. Though commonly called constructive, or substituted service of process in any true sense. It is merely a means provided by law whereby the owner may be admonished that his property is the subject of judicial proceedings and that it is incumbent upon him to take such steps as he sees fit to protect it. In speaking of notice of this character a distinguish master of constitutional law has used the following language: . . . if the owners are named in the proceedings, and personal notice is provided for, it is rather from tenderness to their interests, and in order to make sure that the opportunity for a hearing shall not be

lost to them, than from any necessity that the case shall assume that form. (Cooley on Taxation [2d. ed.], 527, quoted in Leigh vs. Green, 193 U. S., 79, 80.) It will be observed that this mode of notification does not involve any absolute assurance that the absent owner shall thereby receive actual notice. The periodical containing the publication may never in fact come to his hands, and the chances that he should discover the notice may often be very slight. Even where notice is sent by mail the probability of his receiving it, though much increased, is dependent upon the correctness of the address to which it is forwarded as well as upon the regularity and security of the mail service. It will be noted, furthermore, that the provision of our law relative to the mailing of notice does not absolutely require the mailing of notice unconditionally and in every event, but only in the case where the defendant's residence is known. In the light of all these facts, it is evident that actual notice to the defendant in cases of this kind is not, under the law, to be considered absolutely necessary.chanroblesvirtualawlibrary chanrobles virtual law library The idea upon which the law proceeds in recognizing the efficacy of a means of notification which may fall short of actual notice is apparently this: Property is always assumed to be in the possession of its owner, in person or by agent; and he may be safely held, under certain conditions, to be affected with knowledge that proceedings have been instituted for its condemnation and sale. It is the duty of the owner of real estate, who is a nonresident, to take measures that in some way he shall be represented when his property is called into requisition, and if he fails to do this, and fails to get notice by the ordinary publications which have usually been required in such cases, it is his misfortune, and he must abide the consequences. (6 R. C. L., sec. 445 [p. 450]). It has been well said by an American court: If property of a nonresident cannot be reached by legal process upon the constructive notice, then our statutes were passed in vain, and are mere empty legislative declarations, without either force, or meaning; for if the person is not within the jurisdiction of the court, no personal judgment can be rendered, and if the judgment cannot operate upon the property, then no effective judgment at all can be rendered, so that the result would be that the courts would be powerless to assist a citizen against a nonresident. Such a result would be a deplorable one. (Quarl vs. Abbett, 102 Ind., 233; 52 Am. Rep., 662, 667.) It is, of course universally recognized that the statutory provisions relative to publication or other form of notice against a nonresident owner should be complied with; and in respect to the publication of notice in the newspaper it may be stated that strict compliance with the requirements of the law has been held to be essential. In Guaranty Trust etc. Co. vs. Green Cove etc., Railroad Co. (139 U. S., 137, 138), it was held that where newspaper publication was made for 19 weeks, when the statute required 20, the publication was insufficient.chanroblesvirtualawlibrary chanrobles virtual law library With respect to the provisions of our own statute, relative to the sending of notice by mail, the requirement is that the judge shall direct that the notice be deposited in the mail by the clerk of the court, and it is not in terms declared that the notice must be deposited in the mail. We consider this to

be of some significance; and it seems to us that, having due regard to the principles upon which the giving of such notice is required, the absent owner of the mortgaged property must, so far as the due process of law is concerned, take the risk incident to the possible failure of the clerk to perform his duty, somewhat as he takes the risk that the mail clerk or the mail carrier might possibly lose or destroy the parcel or envelope containing the notice before it should reach its destination and be delivered to him. This idea seems to be strengthened by the consideration that placing upon the clerk the duty of sending notice by mail, the performance of that act is put effectually beyond the control of the plaintiff in the litigation. At any rate it is obvious that so much of section 399 of the Code of Civil Procedure as relates to the sending of notice by mail was complied with when the court made the order. The question as to what may be the consequences of the failure of the record to show the proof of compliance with that requirement will be discussed by us further on.chanroblesvirtualawlibrary chanrobles virtual law library The observations which have just been made lead to the conclusion that the failure of the clerk to mail the notice, if in fact he did so fail in his duty, is not such an irregularity, as amounts to a denial of due process of law; and hence in our opinion that irregularity, if proved, would not avoid the judgment in this case. Notice was given by publication in a newspaper and this is the only form of notice which the law unconditionally requires. This in our opinion is all that was absolutely necessary to sustain the proceedings.chanroblesvirtualawlibrary chanrobles virtual law library It will be observed that in considering the effect of this irregularity, it makes a difference whether it be viewed as a question involving jurisdiction or as a question involving due process of law. In the matter of jurisdiction there can be no distinction between the much and the little. The court either has jurisdiction or it has not; and if the requirement as to the mailing of notice should be considered as a step antecedent to the acquiring of jurisdiction, there could be no escape from the conclusion that the failure to take that step was fatal to the validity of the judgment. In the application of the idea of due process of law, on the other hand, it is clearly unnecessary to be so rigorous. The jurisdiction being once established, all that due process of law thereafter requires is an opportunity for the defendant to be heard; and as publication was duly made in the newspaper, it would seem highly unreasonable to hold that failure to mail the notice was fatal. We think that in applying the requirement of due process of law, it is permissible to reflect upon the purposes of the provision which is supposed to have been violated and the principle underlying the exercise of judicial power in these proceedings. Judge in the light of these conceptions, we think that the provision of Act of Congress declaring that no person shall be deprived of his property without due process of law has not been infringed.chanroblesvirtualawlibrary chanrobles virtual law library In the progress of this discussion we have stated the two conclusions; (1) that the failure of the clerk to send the notice to the defendant by mail did not destroy the jurisdiction of the court and (2) that such irregularity did not infringe the requirement of due process of law. As a consequence of these conclusions the irregularity in question is in some measure shorn of its potency. It is still necessary, however, to consider its effect considered as a simple irregularity of procedure; and it would be idle to pretend that even in this aspect the irregularity is not grave enough. From this point of view, however, it is obvious that any motion to vacate the judgment on the ground of the irregularity in question must

fail unless it shows that the defendant was prejudiced by that irregularity. The least, therefore, that can be required of the proponent of such a motion is to show that he had a good defense against the action to foreclose the mortgage. Nothing of the kind is, however, shown either in the motion or in the affidavit which accompanies the motion.chanroblesvirtualawlibrary chanrobles virtual law library An application to open or vacate a judgment because of an irregularity or defect in the proceedings is usually required to be supported by an affidavit showing the grounds on which the relief is sought, and in addition to this showing also a meritorious defense to the action. It is held that a general statement that a party has a good defense to the action is insufficient. The necessary facts must be averred. Of course if a judgment is void upon its face a showing of the existence of a meritorious defense is not necessary. (10 R. C. L., 718.) chanrobles virtual law library The lapse of time is also a circumstance deeply affecting this aspect of the case. In this connection we quote the following passage from the encyclopedic treatise now in course of publication: Where, however, the judgment is not void on its face, and may therefore be enforced if permitted to stand on the record, courts in many instances refuse to exercise their quasi equitable powers to vacate a judgement after the lapse of the term ay which it was entered, except in clear cases, to promote the ends of justice, and where it appears that the party making the application is himself without fault and has acted in good faith and with ordinary diligence. Laches on the part of the applicant, if unexplained, is deemed sufficient ground for refusing the relief to which he might otherwise be entitled. Something is due to the finality of judgments, and acquiescence or unnecessary delay is fatal to motions of this character, since courts are always reluctant to interfere with judgments, and especially where they have been executed or satisfied. The moving party has the burden of showing diligence, and unless it is shown affirmatively the court will not ordinarily exercise its discretion in his favor. (15 R. C. L., 694, 695.) It is stated in the affidavit that the defendant, Engracio Palanca Tanquinyeng y Limquingco, died January 29, 1910. The mortgage under which the property was sold was executed far back in 1906; and the proceedings in the foreclosure were closed by the order of court confirming the sale dated August 7, 1908. It passes the rational bounds of human credulity to suppose that a man who had placed a mortgage upon property worth nearly P300,000 and had then gone away from the scene of his life activities to end his days in the city of Amoy, China, should have long remained in ignorance of the fact that the mortgage had been foreclosed and the property sold, even supposing that he had no knowledge of those proceedings while they were being conducted. It is more in keeping with the ordinary course of things that he should have acquired information as to what was transpiring in his affairs at Manila; and upon the basis of this rational assumption we are authorized, in the absence of proof to the contrary, to presume that he did have, or soon acquired, information as to the sale of his property.chanroblesvirtualawlibrary chanrobles virtual law library The Code of Civil Procedure, indeed, expressly declares that there is a presumption that things have happened according to the ordinary habits of life (sec. 334 [26]); and we cannot conceive of a situation more appropriate than this for applying the presumption thus defined by the lawgiver. In support of this presumption, as applied to the present case, it is permissible to consider the probability that the

defendant may have received actual notice of these proceedings from the unofficial notice addressed to him in Manila which was mailed by an employee of the bank's attorneys. Adopting almost the exact words used by the Supreme Court of the United States in Grannis vs. Ordeans (234 U. S., 385; 58 L. ed., 1363), we may say that in view of the well-known skill of postal officials and employees in making proper delivery of letters defectively addressed, we think the presumption is clear and strong that this notice reached the defendant, there being no proof that it was ever returned by the postal officials as undelivered. And if it was delivered in Manila, instead of being forwarded to Amoy, China, there is a probability that the recipient was a person sufficiently interested in his affairs to send it or communicate its contents to him.chanroblesvirtualawlibrary chanrobles virtual law library Of course if the jurisdiction of the court or the sufficiency of the process of law depended upon the mailing of the notice by the clerk, the reflections in which we are now indulging would be idle and frivolous; but the considerations mentioned are introduced in order to show the propriety of applying to this situation the legal presumption to which allusion has been made. Upon that presumption, supported by the circumstances of this case, ,we do not hesitate to found the conclusion that the defendant voluntarily abandoned all thought of saving his property from the obligation which he had placed upon it; that knowledge of the proceedings should be imputed to him; and that he acquiesced in the consequences of those proceedings after they had been accomplished. Under these circumstances it is clear that the merit of this motion is, as we have already stated, adversely affected in a high degree by the delay in asking for relief. Nor is it an adequate reply to say that the proponent of this motion is an administrator who only qualified a few months before this motion was made. No disability on the part of the defendant himself existed from the time when the foreclosure was effected until his death; and we believe that the delay in the appointment of the administrator and institution of this action is a circumstance which is imputable to the parties in interest whoever they may have been. Of course if the minor heirs had instituted an action in their own right to recover the property, it would have been different.chanroblesvirtualawlibrary chanrobles virtual law library It is, however, argued that the defendant has suffered prejudice by reason of the fact that the bank became the purchaser of the property at the foreclosure sale for a price greatly below that which had been agreed upon in the mortgage as the upset price of the property. In this connection, it appears that in article nine of the mortgage which was the subject of this foreclosure, as amended by the notarial document of July 19, 1906, the parties to this mortgage made a stipulation to the effect that the value therein placed upon the mortgaged properties should serve as a basis of sale in case the debt should remain unpaid and the bank should proceed to a foreclosure. The upset price stated in that stipulation for all the parcels involved in this foreclosure was P286,000. It is said in behalf of the appellant that when the bank bought in the property for the sum of P110,200 it violated that stipulation.chanroblesvirtualawlibrary chanrobles virtual law library It has been held by this court that a clause in a mortgage providing for a tipo, or upset price, does not prevent a foreclosure, nor affect the validity of a sale made in the foreclosure proceedings. (Yangco vs. Cruz Herrera and Wy Piaco, 11 Phil. Rep., 402; Banco-Espaol Filipino vs. Donaldson, Sim and Co., 5 Phil. Rep., 418.) In both the cases here cited the property was purchased at the foreclosure sale, not by the creditor or mortgagee, but by a third party. Whether the same rule should be applied in a case where

the mortgagee himself becomes the purchaser has apparently not been decided by this court in any reported decision, and this question need not here be considered, since it is evident that if any liability was incurred by the bank by purchasing for a price below that fixed in the stipulation, its liability was a personal liability derived from the contract of mortgage; and as we have already demonstrated such a liability could not be the subject of adjudication in an action where the court had no jurisdiction over the person of the defendant. If the plaintiff bank became liable to account for the difference between the upset price and the price at which in bought in the property, that liability remains unaffected by the disposition which the court made of this case; and the fact that the bank may have violated such an obligation can in no wise affect the validity of the judgment entered in the Court of First Instance.chanroblesvirtualawlibrary chanrobles virtual law library In connection with the entire failure of the motion to show either a meritorious defense to the action or that the defendant had suffered any prejudice of which the law can take notice, we may be permitted to add that in our opinion a motion of this kind, which proposes to unsettle judicial proceedings long ago closed, can not be considered with favor, unless based upon grounds which appeal to the conscience of the court. Public policy requires that judicial proceedings be upheld. The maximum here applicable is non quieta movere. As was once said by Judge Brewer, afterwards a member of the Supreme Court of the United States: Public policy requires that judicial proceedings be upheld, and that titles obtained in those proceedings be safe from the ruthless hand of collateral attack. If technical defects are adjudged potent to destroy such titles, a judicial sale will never realize that value of the property, for no prudent man will risk his money in bidding for and buying that title which he has reason to fear may years thereafter be swept away through some occult and not readily discoverable defect. (Martin vs. Pond, 30 Fed., 15.) In the case where that language was used an attempt was made to annul certain foreclosure proceedings on the ground that the affidavit upon which the order of publication was based erroneously stated that the State of Kansas, when he was in fact residing in another State. It was held that this mistake did not affect the validity of the proceedings.chanroblesvirtualawlibrary chanrobles virtual law library In the preceding discussion we have assumed that the clerk failed to send the notice by post as required by the order of the court. We now proceed to consider whether this is a proper assumption; and the proposition which we propose to establish is that there is a legal presumption that the clerk performed his duty as the ministerial officer of the court, which presumption is not overcome by any other facts appearing in the cause.chanroblesvirtualawlibrary chanrobles virtual law library In subsection 14 of section 334 of the Code of Civil Procedure it is declared that there is a presumption "that official duty has been regularly performed;" and in subsection 18 it is declared that there is a presumption "that the ordinary course of business has been followed." These presumptions are of course in no sense novelties, as they express ideas which have always been recognized. Omnia presumuntur rite et solemniter esse acta donec probetur in contrarium. There is therefore clearly a legal presumption that the clerk performed his duty about mailing this notice; and we think that strong considerations of policy require that this presumption should be allowed to operate with full force under the circumstances of this case. A party to an action has no control over the clerk of the court; and

has no right to meddle unduly with the business of the clerk in the performance of his duties. Having no control over this officer, the litigant must depend upon the court to see that the duties imposed on the clerk are performed.chanroblesvirtualawlibrary chanrobles virtual law library Other considerations no less potent contribute to strengthen the conclusion just stated. There is no principle of law better settled than that after jurisdiction has once been required, every act of a court of general jurisdiction shall be presumed to have been rightly done. This rule is applied to every judgment or decree rendered in the various stages of the proceedings from their initiation to their completion (Voorhees vs. United States Bank, 10 Pet., 314; 35 U. S., 449); and if the record is silent with respect to any fact which must have been established before the court could have rightly acted, it will be presumed that such fact was properly brought to its knowledge. (The Lessee of Grignon vs. Astor, 2 How., 319; 11 L. ed., 283.) In making the order of sale [of the real state of a decedent] the court are presumed to have adjudged every question necessary to justify such order or decree, viz: The death of the owners; that the petitioners were his administrators; that the personal estate was insufficient to pay the debts of the deceased; that the private acts of Assembly, as to the manner of sale, were within the constitutional power of the Legislature, and that all the provisions of the law as to notices which are directory to the administrators have been complied with. . . . The court is not bound to enter upon the record the evidence on which any fact was decided. (Florentine vs. Barton, 2 Wall., 210; 17 L. ed., 785.) Especially does all this apply after long lapse of time. Applegate vs. Lexington and Carter County Mining Co. (117 U. S., 255) contains an instructive discussion in a case analogous to that which is now before us. It there appeared that in order to foreclose a mortgage in the State of Kentucky against a nonresident debtor it was necessary that publication should be made in a newspaper for a specified period of time, also be posted at the front door of the court house and be published on some Sunday, immediately after divine service, in such church as the court should direct. In a certain action judgment had been entered against a nonresident, after publication in pursuance of these provisions. Many years later the validity of the proceedings was called in question in another action. It was proved from the files of an ancient periodical that publication had been made in its columns as required by law; but no proof was offered to show the publication of the order at the church, or the posting of it at the front door of the court-house. It was insisted by one of the parties that the judgment of the court was void for lack of jurisdiction. But the Supreme Court of the United States said: The court which made the decree . . . was a court of general jurisdiction. Therefore every presumption not inconsistent with the record is to be indulged in favor of its jurisdiction. . . . It is to be presumed that the court before making its decree took care of to see that its order for constructive service, on which its right to make the decree depended, had been obeyed. It is true that in this case the former judgment was the subject of collateral , or indirect attack, while in the case at bar the motion to vacate the judgment is direct proceeding for relief against it. The same general presumption, however, is indulged in favor of the judgment of a court of general jurisdiction, whether it is the subject of direct or indirect attack the only difference being that in case of indirect

attack the judgment is conclusively presumed to be valid unless the record affirmatively shows it to be void, while in case of direct attack the presumption in favor of its validity may in certain cases be overcome by proof extrinsic to the record.chanroblesvirtualawlibrary chanrobles virtual law library The presumption that the clerk performed his duty and that the court made its decree with the knowledge that the requirements of law had been complied with appear to be amply sufficient to support the conclusion that the notice was sent by the clerk as required by the order. It is true that there ought to be found among the papers on file in this cause an affidavit, as required by section 400 of the Code of Civil Procedure, showing that the order was in fact so sent by the clerk; and no such affidavit appears. The record is therefore silent where it ought to speak. But the very purpose of the law in recognizing these presumptions is to enable the court to sustain a prior judgment in the face of such an omission. If we were to hold that the judgment in this case is void because the proper affidavit is not present in the file of papers which we call the record, the result would be that in the future every title in the Islands resting upon a judgment like that now before us would depend, for its continued security, upon the presence of such affidavit among the papers and would be liable at any moment to be destroyed by the disappearance of that piece of paper. We think that no court, with a proper regard for the security of judicial proceedings and for the interests which have by law been confided to the courts, would incline to favor such a conclusion. In our opinion the proper course in a case of this kind is to hold that the legal presumption that the clerk performed his duty still maintains notwithstanding the absence from the record of the proper proof of that fact.chanroblesvirtualawlibrary chanrobles virtual law library In this connection it is important to bear in mind that under the practice prevailing in the Philippine Islands the word "record" is used in a loose and broad sense, as indicating the collective mass of papers which contain the history of all the successive steps taken in a case and which are finally deposited in the archives of the clerk's office as a memorial of the litigation. It is a matter of general information that no judgment roll, or book of final record, is commonly kept in our courts for the purpose of recording the pleadings and principal proceedings in actions which have been terminated; and in particular, no such record is kept in the Court of First Instance of the city of Manila. There is, indeed, a section of the Code of Civil Procedure which directs that such a book of final record shall be kept; but this provision has, as a matter of common knowledge, been generally ignored. The result is that in the present case we do not have the assistance of the recitals of such a record to enable us to pass upon the validity of this judgment and as already stated the question must be determined by examining the papers contained in the entire file.chanroblesvirtualawlibrary chanrobles virtual law library But it is insisted by counsel for this motion that the affidavit of Bernardo Chan y Garcia showing that upon April 4, 1908, he sent a notification through the mail addressed to the defendant at Manila, Philippine Islands, should be accepted as affirmative proof that the clerk of the court failed in his duty and that, instead of himself sending the requisite notice through the mail, he relied upon Bernardo to send it for him. We do not think that this is by any means a necessary inference. Of course if it had affirmatively appeared that the clerk himself had attempted to comply with this order and had directed the notification to Manila when he should have directed it to Amoy, this would be conclusive that he had failed to comply with the exact terms of the order; but such is not this case. That the clerk of the

attorneys for the plaintiff erroneously sent a notification to the defendant at a mistaken address affords in our opinion very slight basis for supposing that the clerk may not have sent notice to the right address.chanroblesvirtualawlibrary chanrobles virtual law library There is undoubtedly good authority to support the position that when the record states the evidence or makes an averment with reference to a jurisdictional fact, it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than stated. If, to give an illustration, it appears from the return of the officer that the summons was served at a particular place or in a particular manner, it will not be presumed that service was also made at another place or in a different manner; or if it appears that service was made upon a person other than the defendant, it will not be presumed, in the silence of the record, that it was made upon the defendant also (Galpin vs. Page, 18 Wall., 350, 366; Settlemier vs. Sullivan, 97 U. S., 444, 449). While we believe that these propositions are entirely correct as applied to the case where the person making the return is the officer who is by law required to make the return, we do not think that it is properly applicable where, as in the present case, the affidavit was made by a person who, so far as the provisions of law are concerned, was a mere intermeddler.chanroblesvirtualawlibrary chanrobles virtual law library The last question of importance which we propose to consider is whether a motion in the cause is admissible as a proceeding to obtain relief in such a case as this. If the motion prevails the judgment of July 2, 1908, and all subsequent proceedings will be set aside, and the litigation will be renewed, proceeding again from the date mentioned as if the progress of the action had not been interrupted. The proponent of the motion does not ask the favor of being permitted to interpose a defense. His purpose is merely to annul the effective judgment of the court, to the end that the litigation may again resume its regular course.chanroblesvirtualawlibrary chanrobles virtual law library There is only one section of the Code of Civil Procedure which expressly recognizes the authority of a Court of First Instance to set aside a final judgment and permit a renewal of the litigation in the same cause. This is as follows: SEC. 113. Upon such terms as may be just the court may relieve a party or legal representative from the judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; Provided, That application thereof be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. An additional remedy by petition to the Supreme Court is supplied by section 513 of the same Code. The first paragraph of this section, in so far as pertinent to this discussion, provides as follows: When a judgment is rendered by a Court of First Instance upon default, and a party thereto is unjustly deprived of a hearing by fraud, accident, mistake or excusable negligence, and the Court of First Instance which rendered the judgment has finally adjourned so that no adequate remedy exists in that court, the party so deprived of a hearing may present his petition to the Supreme Court within sixty days after he first learns of the rendition of such judgment, and not thereafter, setting forth the facts and praying to have judgment set aside. . . .

It is evident that the proceeding contemplated in this section is intended to supplement the remedy provided by section 113; and we believe the conclusion irresistible that there is no other means recognized by law whereby a defeated party can, by a proceeding in the same cause, procure a judgment to be set aside, with a view to the renewal of the litigation.chanroblesvirtualawlibrary chanrobles virtual law library The Code of Civil Procedure purports to be a complete system of practice in civil causes, and it contains provisions describing with much fullness the various steps to be taken in the conduct of such proceedings. To this end it defines with precision the method of beginning, conducting, and concluding the civil action of whatever species; and by section 795 of the same Code it is declared that the procedure in all civil action shall be in accordance with the provisions of this Code. We are therefore of the opinion that the remedies prescribed in sections 113 and 513 are exclusive of all others, so far as relates to the opening and continuation of a litigation which has been once concluded.chanroblesvirtualawlibrary chanrobles virtual law library The motion in the present case does not conform to the requirements of either of these provisions; and the consequence is that in our opinion the action of the Court of First Instance in dismissing the motion was proper.chanroblesvirtualawlibrary chanrobles virtual law library If the question were admittedly one relating merely to an irregularity of procedure, we cannot suppose that this proceeding would have taken the form of a motion in the cause, since it is clear that, if based on such an error, the came to late for relief in the Court of First Instance. But as we have already seen, the motion attacks the judgment of the court as void for want of jurisdiction over the defendant. The idea underlying the motion therefore is that inasmuch as the judgment is a nullity it can be attacked in any way and at any time. If the judgment were in fact void upon its face, that is, if it were shown to be a nullity by virtue of its own recitals, there might possibly be something in this. Where a judgment or judicial order is void in this sense it may be said to be a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head.chanroblesvirtualawlibrary chanrobles virtual law library But the judgment in question is not void in any such sense. It is entirely regular in form, and the alleged defect is one which is not apparent upon its face. It follows that even if the judgment could be shown to be void for want of jurisdiction, or for lack of due process of law, the party aggrieved thereby is bound to resort to some appropriate proceeding to obtain relief. Under accepted principles of law and practice, long recognized in American courts, a proper remedy in such case, after the time for appeal or review has passed, is for the aggrieved party to bring an action to enjoin the judgment, if not already carried into effect; or if the property has already been disposed of he may institute suit to recover it. In every situation of this character an appropriate remedy is at hand; and if property has been taken without due process, the law concedes due process to recover it. We accordingly old that, assuming the judgment to have been void as alleged by the proponent of this motion, the proper remedy was by an original proceeding and not by motion in the cause. As we have already seen our Code of Civil Procedure defines the conditions under which relief against a judgment may be productive of conclusion for this court to recognize such a proceeding as proper under conditions different from those defined by law.

Upon the point of procedure here involved, we refer to the case of People vs. Harrison (84 Cal., 607) wherein it was held that a motion will not lie to vacate a judgment after the lapse of the time limited by statute if the judgment is not void on its face; and in all cases, after the lapse of the time limited by statute if the judgment is not void on its face; and all cases, after the lapse of such time, when an attempt is made to vacate the judgment by a proceeding in court for that purpose an action regularly brought is preferable, and should be required. It will be noted taken verbatim from the California Code (sec. 473).chanroblesvirtualawlibrary chanrobles virtual law library The conclusions stated in this opinion indicate that the judgment appealed from is without error, and the same is accordingly affirmed, with costs. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library Arellano, C.J., Torres, Carson, and Avancea, JJ., concur. Republic of the Philipppines SUPREME COURT Manila EN BANC [G.R. No. 126995. October 6, 1998] IMELDA R. MARCOS, Petitioner, vs. The Honorable SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, Respondents. RESOLUTION PURISIMA, J.: chanroblesvirtualawlibrary This scenic Philippine archipelago is a citadel of justice, due process and rule of law. Succinct and clear is the provision of the constitution of this great Republic that every accused is presumed innocent until the contrary is proved. [Art. 111, Sec. 14(2)]. As held in People of the Philippines vs. Ellizabeth Ganguso y Decena (G.R. No 115430, November 23, 1995, 250 SCRA 268, 274-275): chanroblesvirtualawlibrary An accused has in his favor the presumption of innocence which the Bill of Rights guarantees. Unless his guilt is shown beyond reasonable doubt, he must be acquitted. This reasonable doubt standard is demanded by the due process clause of the Constitution which protects the accused from conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged. The burden of proof is on the prosecution, and unless it discharges that burden the accused need not even offer evidence in his behalf, and he would be entitled to an acquittal. Proof beyond reasonable doubt does not, of course, mean such degree of proof as, excluding the possibility of error, produce absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. The conscience must be satisfied that the accused is responsible for the offense charged. chanroblesvirtualawlibrary

So also, well-settled, to the point of being elementary, is the doctrine that when inculpatory facts are susceptible to two or more interpretations, one of which is consistent with the innocence of the accused, the evidence does not fulfill or hurdle the test of moral certainty required for conviction. (People of the Philippines vs. Eric F. Timtiman, G.R. No. 101663, November 4, 1992, 215 SCRA 364, 373 citing People vs. Remorosa, 200 SCRA 350, 360 [1991]; People vs. Raquel, 265 SCRA 248; People vs. Aranda, 226 SCRA 562; People vs. Maongco, 230 SCRA 562; People vs. Salangga, 234 SCRA 407) chanroblesvirtualawlibrary Mindful of and guided by the aforecited constitutional and legal precepts, doctrines and principles prevailing in this jurisdiction, should petitioners Motion for Reconsideration be granted? chanroblesvirtualawlibrary Docketed as Criminal Case No. 17450 before the Sandiganbayan, the Information indicting Imelda R. Marcos and Jose P. Dans, Jr. for a violation of Section 3(g) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, alleges: chanroblesvirtualawlibrary That on or about June 8, 1984, and for sometime prior or subsequent thereto, in Makati, MetroManila, Philippines, and within the jurisdiction of this Honorable Court, the accused IMELDA R. MARCOS and JOSE P. DANS, JR., public officers, being then Chairman and Vice-Chairman, respectively, of the Light Rail Transit Authority (LRTA), a government corporate entity created under Executive Order No. 603 of the former President Ferdinand Marcos, while in the performance of their official functions, taking advantage of their positions and committing the crime in relation to their offices, did then and there wilfully, unlawfully and criminally conspiring with one another, enter on behalf of the aforesaid government corporation into a Lease Agreement covering LRTA property located in Pasay City, with the Philippine General Hospital Foundation, Inc. (PGHFI), a private enterprise, under terms and conditions manifestly and grossly disadvantageous to the government. chanroblesvirtualawlibrary CONTRARY TO LAW. chanroblesvirtualawlibrary The case was raffled off to the First Division of the Sandiganbayan, with Presiding Justice Francis E. Garchitorena, as Chairman and Justices Jose S. Balajadia and Narciso T. Atienza, as members. On September 15, 1993, when the First Division failed to comply with the legal requirement of unanimity of its three members due to the dissent of Justice Narciso T. Atienza, Presiding Justice Garchitorena issued Administrative Order No. 288-93 constituting a Special Division of five and designating Justices Augusto M. Amores and Cipriano A. Del Rosario, as additional members. chanroblesvirtualawlibrary On September 21, 1993, Justice Amores wrote Presiding Justice Garchitorena requesting that he be given fifteen (15) days to send in his Manifestation. However, on the same day, September 21, 1993, when Justice Balajadia and Presiding Justice Garchitorena agreed with the opinion of Justice Del Rosario, Presiding Justice Garchitorena issued Administrative Order No. 293-93, dissolving the Special Division of Five, without waiting for Justice Amores manifestation. Justice Garchitorena considered the said request of Justice Amores as pointless because of the agreement of Justice Balajadia and the undersigned to the conclusion reached by Justice Atienza. Thus, on September 24, 1993, the now

assailed decision was handed down by the First Division of the Sandiganbayan. chanroblesvirtualawlibrary Under the aforequoted Information charging accused Imelda R. Marcos and Jose P. Dans, Jr. with a violation of Section 3(g) of RA 3019, the following elements of the offense charged must be proved beyond reasonable doubt, to wit: 1] that the accused acted as a public officer; 2] that subject Contract or transaction entered into by the latter is manifestly and grossly disadvantageous to the government. chanroblesvirtualawlibrary There is no dispute that sometime in the year 1984, the herein petitioner, Imelda R. Marcos, was Minister of Human Settlement while Jose P. Dans, Jr. was the Minister of Transportation and Communication. The two served as ex oficio Chairman and Vice Chairman, respectively, of the Light Rail Transport Authority (LRTA). Petitioner Marcos was also Chairman of the Board of Trustees of the Philippine General Hospital Foundation, Inc. (PGHFI). chanroblesvirtualawlibrary On June 8, 1984, Petitioner, in her capacity as Chairman of PGHFI, and Jose P. Dans, Jr. as Vice Chairman of LRTA, signed the Lease Agreement (Exhibit B) by virtue of which LRTA leased to PGHFI subject lot with an area of 7,340 square meters, at a monthly rental of P102,760.00 for a period of twenty-five (25) years. chanroblesvirtualawlibrary On June 27, 1984, the PGHFI, represented by its Chairman Imelda R. Marcos, and Transnational Construction Corporation, represented by its President Ignacio B. Gimenez, signed the Sub-lease Agreement (Exhibit D), wherein said lessee rented the same area of 7,340 square meters for P734,000.00 a month, for a period of twenty-five (25) years. chanroblesvirtualawlibrary For executing the aforesaid Lease Agreement (Exhibit B), petitioner and Jose P. Dans, Jr. were indicted in the said Information, for conspiring and confederating with each other in entering into subject Lease Agreement alleged to be manifestly and grossly disadvantageous to the government. chanroblesvirtualawlibrary After trial, as earlier alluded to, the Sandiganbayan convicted the petitioner and Jose P. Dans, Jr. of the offense charged. chanroblesvirtualawlibrary On June 29, 1998, the Third Division of this court came out with its decision affirming the judgment, as against petitioner Imelda R. Marcos, in G.R. No. 126995, but reversing the same judgment, as against Jose P. Dans, Jr., in G.R. No. 127073. chanroblesvirtualawlibrary In affirming the judgment of conviction against petitioner, the Third Division found the rental price stipulated in the Lease Agreement, (Exhibit B) unfair and unreasonably low, upon a comparison with the rental rate in the Sub-lease Agreement (Exhibit D), which contract petitioner subsequently signed on behalf of PGHFI, with TNCC. Undaunted, the petitioner interposed the present Motion for Reconsideration. chanroblesvirtualawlibrary The pivot of inquiry here is whether all the elements of the offense charged have been duly substantiated. As regards the first element, did petitioner Imelda R. Marcos enter into the Lease

Agreement marked Exhibit B as a public officer? As clearly stated on the face of the subject contract under scrutiny, petitioner signed the same in her capacity as Chairman of PGHFI and not as Human Settlement Minister nor as ex-officio Chairman of LRTA. It was Jose P. Dans, Jr. who signed said Contract, as ex-officio Vice-Chairman of LRTA. Although petitioner was the ex-officio Chairman of LRTA, at the time, there is no evidence to show that she was present when the Board of Directors of LRTA authorized and approved the Lease Agreement sued upon. chanroblesvirtualawlibrary In light of the foregoing antecedent facts and circumstances, the irresistible conclusion is that petitioner did not sign subject Lease Agreement as a public officer, within the contemplation of RA 3019 and, therefore, the first element of the offense charged is wanting. chanroblesvirtualawlibrary It bears stressing, in this connection, that Jose P. Dans, Jr., the public officer who signed the said Lease Agreement (Exhibit B) for LRTA, was acquitted. chanroblesvirtualawlibrary As regards the second element of the offense - that such Lease Agreement is grossly and manifestly disadvantageous to the government, the respondent court based its finding thereon against the petitioner and Jose P. Dans, Jr., on a ratiocination that while the rental price under the Lease Agreement is only P102,760.00 a month, the monthly rental rate under the Sub-lease Agreement is P734,000.00. After comparing the two rental rates aforementioned, the respondent court concluded that the rental price of P102,760.00 a month is unfair, unreasonable and disadvantageous to the government. chanroblesvirtualawlibrary But Exhibit B does not prove that the said contract entered into by petitioner is manifestly and grossly disadvantageous to the government. There is no established standard by which Exhibit Bs rental provisions could be adjudged prejudicial to LRTA or the entire government. Exhibit B standing alone does not prove any offense. Neither does Exhibit B together with the Sub-lease Agreement (Exhibit D) prove the offense charged. chanroblesvirtualawlibrary At most, it creates only a doubt in the mind of the objective readers as to which (between the lease and sub-lease rental rates) is the fair and reasonable one, considering the different circumstances as well as parties involved. It could happen that in both contracts, neither the LRTA nor the Government suffered any injury. There is, therefore, insufficient evidence to prove petitioners guilt beyond reasonable doubt. chanroblesvirtualawlibrary Verily, it is too obvious to require an extended disquisition that the only basis of the respondent court for condemning the Lease Agreement (Exhibit B) as manifestly and grossly disadvantageous to the government was a comparison of the rental rate in the Lease Agreement, with the very much higher rental price under the Sub-lease Agreement (Exhibit D). Certainly, such a comparison is purely speculative and violative of due process. The mere fact that the Sub-lease Agreement provides a monthly rental of P734,000.00 does not necessarily mean that the rental price of P102,760.00 per month under the Lease Agreement (Exhibit B) is very low, unreasonable and manifestly and grossly disadvantageous to the government. There are many factors to consider in the determination of what is a reasonable rate of rental. chanroblesvirtualawlibrary

What is more, as stressed by Jose P. Dans Jr., when subject Lease Agreement was inked, the rental rate therein provided was based on a study conducted in accordance with generally accepted rules of rental computation. On this score, Mr. Ramon F. Cuervo, Jr., the real estate appraiser who testified in the case as an expert witness and whose impartiality and competence were never impugned, assured the court that the rental price stipulated in the Lease Agreement under scrutiny was fair and adequate. According to him, witness, the reasonable rental for subject property at the time of execution of Exhibit B was only P73,000.00 per month. chanroblesvirtualawlibrary That the Sub-lease Agreement (Exhibit D) was for a very much higher rental rate of P734,000.00 a month is of no moment. This circumstance did not necessarily render the monthly rental rate of P102,760.00 manifestly and grossly disadvantageous to the lessor. Evidently, the prosecution failed to prove that the rental rate of P102,760.00 per month was manifestly and grossly disadvantageous to the government. Not even a single lease contract covering a property within the vicinity of the said leased premises was offered in evidence. The disparity between the rental price of the Lease Agreement and that of the Sublease Agreement is no evidence at all to buttress the theory of the prosecution, that the Lease Agreement in question is manifestly and grossly disadvantageous to the government. Gross is a comparative term. Before it can be considered gross, there must be a standard by which the same is weighed and measured. chanroblesvirtualawlibrary All things viewed in proper perspective, it is decisively clear that there is a glaring absence of substantiation that the Lease Agreement under controversy is grossly and manifestly disadvantageous to the government, as theorized upon by the prosecution. chanroblesvirtualawlibrary Furthermore, that the lessee, PGHFI, succeeded in obtaining a high rental rate of P734,000.00 a month, did not result in any disadvantage to the government because obviously, the rental income realized by PGHFI from the Sub-lease Agreement (Exhibit D) augmented the financial support for and improved the management and operation of the Philippine General Hospital, which is, after all, a government hospital of the people and for the people. chanroblesvirtualawlibrary Another sustainable ground for the granting of petitioners motion for reconsideration is the failure and inability of the prosecution to prove that petitioner was present when the Board of Directors of LRTA authorized and approved the Lease Agreement complained of. Albeit, petitioner was ex oficio chairman of the Board of Directors of LRTA when the said Lease Agreement was entered into, there is no evidence whatsoever to show that she attended the board meeting of LRTA which deliberated and acted upon subject Lease Agreement (Exhibit B). It is thus beyond cavil that petitioner signed the said Lease Agreement as Chairman of the PGH Foundation, Inc., a private charitable foundation, and not as a public officer. chanroblesvirtualawlibrary Neither can petitioner be considered as in conspiracy with Jose P. Dans, Jr., who has been found without any criminal liability for signing the same Lease Agreement. Absent any conspiracy of petitioner with Dans, the act of the latter cannot be viewed as an act of the former. Petitioner is only answerable for her own individual act. Consequently, petitioner not having signed Exhibit B as a public officer, there is neither legal nor factual basis for her conviction under Section 3 (g) of Rep Act 3019. chanroblesvirtualawlibrary

It bears repeating that apart from the Lease Agreement and Sub-lease Agreement marked Exhibits B and D, respectively, the prosecution offered no other evidence to prove the accusation at bar. chanroblesvirtualawlibrary What makes petitioners stance the more meritorious and impregnable is the patent violation of her right to due process, substantive and procedural, by the respondent court. Records disclose that: (a) the First Division of the Sandiganbayan composed of Presiding Justice Garchitorena and Associate Justices Balajadia and Atienza could not agree on whether to convict or acquit the petitioner in the five (5) criminal cases pending against her. Justice Atienza was in favor of exonerating petitioner in Criminal Case Nos. 17449, 17451 and 17452. Justices Garchitorena and Balajadia wanted to convict her in Criminal Case Nos. 17450, 17451, 17452 and 17453. As there there was no unanimity of votes in Criminal Case Nos. 17451 and 17452; (b) on September 15, 1993, in accordance with Sec. 5 of P. D. No. 1606, Presiding Justice Garchitorena issued Adm. Order No. 288-93 constituting a Special Division of five (5) justices, and naming thereto, Justices Augusto M. Amores and Cipriano A. del Rosario; (c) on September 21, 1993, Justice Amores sent a written request to Presiding Justice Garchitorena asking that he be given fifteen (15) days to submit his Manifestation; (d) on the same day, September 21, 1993, however, Presiding Justice Garchitorena and Justices Balajadia and del Rosario, after attending a hearing of the Committee of Justice of the House of Representatives, lunched together in a Quezon City restaurant where they discussed petitioners cases in the absence of Justices Atienza and Amores and in the presence of a non-member of the Special Division. Thereat, Presiding Justice Garchitorena, and Justices Balajadia and del Rosario agreed with the position of Justice Atienza to acquit petitioner in Criminal Case Nos. 17449, 17451 and 17452 and to convict her in the other cases; and (e) when the Justices returned to the official workplace of Sandiganbayan, Presiding Justice Garchitorena issued Adm. Order No. 293-93 dissolving the Special Division. chanroblesvirtualawlibrary Such procedural flaws committed by respondent Sandiganbayan are fatal to the validity of its decision convicting petitioner for the following reasons, viz: chanroblesvirtualawlibrary First. Section 4, Rule VI categorically provides that sessions of the Sandiganbayan, whether en banc or division, shall be held in its principal office in the Metropolitan Manila where it shall try and determine all cases filed with it x x x. This rule reiterates Sec. 2 of P.D. No. 1606, as amended, creating the Sandiganbayan. chanroblesvirtualawlibrary Second, The rules of Sandiganbayan do not allow unscheduled discussion of cases. We take judicial notice of the procedure that cases in all courts are carefully calendared and advance notices are given to judges and justices to enable them to study and prepare for deliberation. The calendaring of cases cannot be the subject of anybodys whims and caprices. chanroblesvirtualawlibrary Third. The rules of Sandiganbayan do not also allow informal discussion of cases. The deliberations in case at bar did not appear on record. The informal discussion of the three justices came to light only when petitioner moved to inhibit Presiding Justice Garchitorena after her conviction by the resuscitated First Division. Presiding Justice Garchitorena, in a paper entitled Response, revealed for the first time

the informal discussion of petitioners cases at an unnamed restaurant in Quezon City. There is no way to know how the discussion was conducted as it was not minuted. chanroblesvirtualawlibrary Fourth. The rules of the Sandiganbayan do not allow the presence of a non-member in the deliberation of cases. In the case at bar, a certain justice was present when Presiding Justice Garchitorena, Justice Balajadia, and Justice del Rosario discussed petitioners cases while taking their lunch in a Quezon City restaurant. chanroblesvirtualawlibrary Fifth. The rules of the Sandiganbayan do not allow the exclusion of a member of a Division, whether regular or special, in the deliberation of cases. Justices Atienza and Amores were members of the Special Division but were not present when petitioners cases were discussed over lunch in a Quezon City restaurant. They were not notified of the informal, unscheduled meeting. In fact, Justice Amores had a pending request for 15 days to study petitioners cases. In effect, Atienza and Amores were disenfranchised. They were denied their right to vote for the conviction or acquittal of petitioner. chanroblesvirtualawlibrary These irregularities violated the right of petitioner to be tried by a collegial court. Under PD No. 1606, as amended, and pursuant to the rules of Sandiganbayan, petitioner cannot be convicted except upon the vote of three justices, regardless of whether her cases are before a regular division of three (3) justices or a Special Division of five (5) justices. But more important than the vote of three (3) justices is the process by which they arrive at their vote. It is indispensable that their vote be preceded by discussion and deliberation by all the members of the division. Before the deliberation by all, any opinion of a justice is but tentative and could be changed. It is only after all the justices have been heard should the justices reach a judgment. No one opinion can be denigrated in importance for experience shows that an opinion that starts as a minority opinion could become the majority opinion after the collision of views of the justices. The right of the petitioner, therefore, is the right to be heard by all the five justices of the Special Division. She is entitled to be afforded the opinion of all its members. chanroblesvirtualawlibrary In the case at bar, Presiding Justice Garchitorena had already created the Special Division of five (5) justices in view of the lack of unanimity of the three (3) justices in the First Division. At that stage, petitioner had a vested right to be heard by the five (5) justices, especially the new justices in the persons of Justices Amores and del Rosario who may have a different view of the cases against her. At that point, Presiding Justice Garchitorena and Justice Balajadia may change their mind and agree with the original opinion of Justice Atienza but the turnaround cannot deprive petitioner of her vested right to the opinion of Justices Amores and del Rosario. It may be true that Justice del Rosario had already expressed his opinion during an informal, unscheduled meeting in the unnamed restaurant but as aforestated, that opinion is not the opinion contemplated by law. But what is more, petitioner was denied the opinion of Justice Amores for before it could be given, Presiding Justice Garchitorena dissolved the Special Division. chanroblesvirtualawlibrary We reject the rationalization that the opinion of Justice Amores was of de minimis importance as it cannot overturn the votes of the three justices convicting the petitioner. This is a mere guesswork. The more reasonable supposition is that said opinion could have changed the opinions of the other justices

if it is based on an unbiased appreciation of facts and an undistorted interpretation of pertinent laws. For we cannot unreasonably suppose that Presiding Justice Garchitorena and Justices Balajadia and Atienza are bigots who will never change their opinions about the guilt of the petitioner despite a better opinion. chanroblesvirtualawlibrary Yet, that is not all the value of the aborted opinion of Justice Amores. If it were an opinion for the acquittal of the petitioner, that opinion will have an added value when petitioner appeals her conviction to this Court. Again, depending on its scholarship, that minority opinion could sway the opinion of this Court towards the acquittal of petitioner. chanroblesvirtualawlibrary Prescinding from those premises, it is indisputable that the decision of the First Division of the respondent Sandiganbayan convicting the petitioner is void for violating her right to substantive and procedural due process of law. chanroblesvirtualawlibrary It is opined, however, that this case should be remanded to the respondent Sandiganbayan for redecision by a Special Division of 5. As a general rule, a void decision will not result in the acquittal of an accused. The case ought to be remanded to the court of origin for further proceedings for a void judgment does not expose an accused to double jeopardy. But the present case deserves a different treatment considering the great length of time it has been pending with our courts. Records reveal that petitioner was first indicted in Criminal Case No. 17450 in January 1992. More than six (6) years passed but petitioners prosecution is far from over. To remand the case to the Sandiganbayan will not sit well with her constitutional right to its speedy disposition. Section 16, Article III of the Constitution assures all persons shall have the right to a speedy disposition of their cases before all judicial, quasijudicial, or administrative bodies. This right expands the right of an accused to have a speedy, impartial, and public trial x x x in criminal cases guaranteed by Section 14(2) of Article III of the Constitution. It has a broadening effect because Section 16 covers the periods before, during and after trial whereas Section 14(2) covers only the trial period.[1] Heretofore, we have held that an accused should be acquitted when his right to speedy trial has been violated. Thus, in the early 1936 case of People vs. Castaeda, et al. 63 Phil 480, 485, 486, a ponencia of Mr. Justice Laurel, we held: chanroblesvirtualawlibrary A strict regard for the constitutional rights of the accused would demand, therefore, that the case be remanded to the court below for new trial before an impartial judge. There are vital considerations, however, which in the opinion of this court render this step unnecessary. In the first place, the Constitution, Article III, section 1, paragraph 17, guarantees to every accused person the right to a speedy trial. This criminal proceeding has been dragging on for almost five (5) years now. The accused have twice appealed to this court for redress from the wrong that they have suffered at the hands of the trial court. At least one of them, namely, Pedro Fernandez (alias Piro), had been confined in prison from July 20, 1932 to November 27, 1934 for inability to post the required bond of P3,000 which was finally reduced to P300. The Government should be the last to set an example of delay and oppression in the administration of justice and it is the moral and legal obligation of this court to see that the criminal proceedings against the accused to come to an end and that they be immediately discharged from the custody of the law. (Conde vs. Rivera and Unson, 45 Phil., 650). chanroblesvirtualawlibrary

We reiterated this rule in Acebedo vs. Sarmiento , viz:[2] chanroblesvirtualawlibrary 2. More specifically, this Court has consistently adhered to the view that a dismissal based on the denial of the right to a speedy trial amounts to an acquittal. Necessarily, any further attempt at continuing the prosecution or starting a new one would fall within the prohibition against an accused being twice put in jeopardy. The extensive opinion of Justice Castro in People vs. Obsania noted earlier made reference to four Philippine decisions, People vs. Diaz, People vs. Abao, People vs. Robles, and People vs. Cloribel. In all of the above case, this Court left no doubt that a dismissal of the case, though at the instance of the defendant grounded on the disregard of his right to a speedy trial was tantamount to an acquittal. In People vs. Diaz, it was shown that the case was set for hearing twice and the prosecution without asking for postponement or giving any explanation failed to appear. In People vs. Abao, the facts disclosed that there were three postponements. Thereafter, at the time the resumption of the trial was scheduled, the complaining witness as in this case was absent, this Court held that respondent Judge was justified in dismissing the case upon motion of the defense and that the annulment or setting aside of the order of dismissal would place the accused twice in jeopardy of punishment for the same offense. People vs. Robles likewise presented a picture of witnesses for the prosecution not being available, with the lower court after having transferred the hearings on several occasions denying the last plea for postponement and dismissing the case. Such order of dismissal, according to this Court is not provisional in character but one which is tantamount to acquittal that would bar further prosecution of the accused for the same offense. This is a summary of the Cloribel case as set forth in the above opinion of Justice Castro. In Cloribel, the case dragged for three years and eleven months, that is, from September 27, 1958 when the information was filed to August 15, 1962 when it was called for trial, after numerous postponements, mostly at the instance of the prosecution. On the latter date, the prosecution failed to appear for trial, and upon motion of defendants, the case was dismissed. This Court held, that the dismissal here complained of was not truly a dismissal but an acquittal. For it was entered upon the defendants insistence on their constitutional right to speedy trial and by reason of the prosecutions failure to appear on the date of trial. (Italics supplied) There is no escaping the conclusion then that petitioner here has clearly made out a case of an acquittal arising from the order of dismissal given in open court. chanroblesvirtualawlibrary The rationale for both Section 14(2) and section 16 of Article III of the Constitution is the same: justice delayed is justice denied. Violation of either section should therefore result in the acquittal of the accused. chanroblesvirtualawlibrary There are other reasons why the case should not be remanded to the court a quo. Three justices of the Special Division, namely Justice Atienza, Balajadia and Amores have already retired. Presiding Justice Garchitorena is still with the respondent court but his impartiality has been vigorously assailed by the petitioner. Mr. Justice Francisco of the Third Division of this Court noted that Presiding Justice Garchitorenas undue interference in the examination of witness Cuervo revealed his bias and prejudice against petitioner.[3] As Mr. Justice Francisco observed the court questions were so numerous which as per petitioner Dans count totaled 179 compared to prosecutor Querubins questions which numbered merely 73. More noteworthy, however, is that the court propounded leading, misleading, and baseless hypothetical questions rolled into one.[4] Mr. Justice Franciscos opinion was concurred by Mr. Justice

Melo. Truly, even Mr. Chief Justice Narvasa, Madam Justice Romero and Mr. Justice Panganiban who voted to convict petitioner did not refute Mr. Justice Franciscos observations on the lack of impartiality of Presiding Justice Garchitorena. They disregarded Mr. Ramon F. Cuervos testimony and based the conviction of petitioner purely on the documentary evidence submitted by the People. Moreover, all the evidence in the case at bar are now before this Court and to avoid further delay, we can evaluate the evidence. In fact, the same evidence has been passed upon by the Third Division of this Court in formulating its judgment of affirmance sought to be reconsidered. Certainly, it will be sheer rigmarole for this Court to still remand the case for a Special Division of five of the Sandiganbayan to render another decision in the case, with respect to the herein petitioner. chanroblesvirtualawlibrary I consider this opinion incomplete without quoting herein the following portion of the concurring and dissenting opinion of former Associate Justice Ricardo J. Francisco dated January 29, 1998: chanroblesvirtualawlibrary Thus, purely from the legal standpoint, with the evident weakness of the prosecutions case and the procedural aberrations that marred the trial, it is simply unsound and impossible to treat differently each petitioner who found themselves in one and the same situation. Indeed, our regained democracy, creditably, is successfully bailing us out from the ruins of the authoritarian regime, and it expects that government efforts in going after the plunderers of that dark past remain unrelenting and decisive. But let us not, in our anxiety to carry out this duty, for a moment forget that our criminal justice system is not a popularity contest where freedom and punishment are determined merely by the fame or infamy of the litigants. The scales of justice, it has been aptly said,[5] must hang equal and, in fact, should even be tipped in favor of the accused because of the constitutional presumption of innocence. Needless to stress, this right is available to every accused, whatever his present circumstance and no matter how dark and repellent his past. Culpability for crimes must always take its bearing from evidence and universal precepts of due process - lest we sacrifice in mocking shame once again the very liberties we are defending. chanroblesvirtualawlibrary IN VIEW OF THE FOREGOING, the Motion for Reconsideration under consideration is hereby GRANTED and petitioner Imelda R. Marcos is hereby ACQUITTED of the offense charged. Costs de oficio. chanroblesvirtualawlibrary SO ORDERED. chanroblesvirtualawlibrary Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-46272 June 13, 1986 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ALBERTO OPIDA y QUIAMBAO and VIRGILIO MARCELO, accused-appellants.

CRUZ, J.: chanrobles virtual law library This is an automatic review of the Decision of the Circuit Criminal Court, Seventh Judicial District, imposing the death penalty upon Alberto Opida and Virgilio Marcelo for the crime of murder.chanroblesvirtualawlibrary chanrobles virtual law library Unlike the victim in this case, who died from only one stab wound, the decision under review suffers from several fatal flaws, all equally deadly. It suffices to discuss only one of them.chanroblesvirtualawlibrary chanrobles virtual law library Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial judge. 1 Bolstering this requirement, we have added that the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. 2 The parties are entitled to no less than this, as a minimum guaranty of due process. This guaranty was not observed in this case.chanroblesvirtualawlibrary chanrobles virtual law library On July 31, 1976, in Quezon City, several persons ganged up on Fabian Galvan, stoned and hit him with beer bottles until finally one of them stabbed him to death. The actual knife-wielder was identified as Mario del Mundo. 3 Nonetheless, Alberto Opida and Virgilio Marcelo were charged with murder as conspirators and, after trial, sentenced to death. 4 chanrobles virtual law library The basis of their conviction by the trial court was the testimony of two prosecution witnesses, neither of whom positively said that the accused were at the scene of the crime, their extrajudicial confessions, which were secured without the assistance of counsel, and corroboration of the alleged conspiracy under the theory of interlocking confession. 5 chanrobles virtual law library What is striking about this case is the way the trial judge conducted his interrogation of the two accused and their lone witness, Lilian Layug. It was hardly judicious and certainly far from judicial, at times irrelevant, at Worst malicious. Reading the transcript, one gathers the impression that the judge had allied himself with the prosecution to discredit at the outset the credibility of the witnesses for the defense.chanroblesvirtualawlibrary chanrobles virtual law library Opida is a police character, admittedly a member of the Commando gang and with a string of convictions for robbery, theft and vagrancy. 6 It is worth noting that the judge took special interest in his tattoos, required him to remove his shirt so they could be examined, and even described them in detail for the record. 7 chanrobles virtual law library Besides belaboring Opida's criminal activities and his tattoos, the judge asked him if he had "ever been convicted at the National Mental Hospital with what else but malice and suggested to him that his claim of manhandling by the police was a lie because investigators leave no mark when they torture a suspect. 8 This was a point that could have been validly raised by the prosecution but certainly not by the court. The judge also made it of record that the witness was gnashing his teeth, was showing signs

of hostility, that he was uneasy and that he was restless. "Now, whom do you want to fool the judge asked, "the prosecutor, your lawyer, or the court? 9 chanrobles virtual law library In the hearing of September 22, 1976, the interrogation of Virgilio Marcelo, the other accused, was conducted almost wholly by the judge who started cross-examining the witness even before the defense counsel could ask his first question, and took over from the prosecution the task of impeaching Marcelo's credibility. 10 The judge asked him about his drug addiction, his membership in the Commando gang, his tattoos, his parentage, his activities, his criminal record all when he was supposed to be under direct examination by his own lawyer. Defense counsel could hardly put in a word edgewise because the judge kept interrupting to ask his own questions. 11 chanrobles virtual law library The questions were not clarificatory but adversary; and when they were not adversary, they were irrelevant, and sometimes also cruel. At one point, the judge drew from the witness the statement that his mother was living with another man; forthwith he suggested that the mother was unfaithful to his father. 12 We deplore this sadistic treatment of the witness, especially as, for all his supposed "toughness," he could not answer back. We fail to see what possible connection the mother's infidelity could have had, by any stretch of the imagination, with the instant prosecution.chanroblesvirtualawlibrary chanrobles virtual law library But the judge was to save the best or worst of his spite for the third witness, Lilian Layug, a waitress in the restaurant where the appellant Opida was working as a cook. Noting at the outset that she spoke English, he wanted to know where she had learned it and asked in ill-concealed insinuation if she had worked in Angeles City or Olongapo or Sangley. 13 Because she was gesturing nervously, he asked, "Are you a conductor? 14 Of the two accused, he asked her, "They are very proud of belonging to the Commando gang to which the witness answered, putting him in his place, "That I do not know, Your Honor." 15 chanrobles virtual law library One cannot but note the mockery in the following questions put by the judge to the witness, who was probably wondering what the interrogation was all about Court chanrobles virtual law library Q You are a very good friend of Alberto Opida? chanrobles virtual law library A Yes, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q You have known him for years? chanrobles virtual law library A One year only, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q He always feed you with his favorite menu? chanrobles virtual law library A Yes, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q He is a very good cook? chanrobles virtual law library A Yes, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library

Q Because what he could cook, you could not cook? chanrobles virtual law library A I know also how to cook, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q Answer my question.chanroblesvirtualawlibrary chanrobles virtual law library A Yes, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q Whenever you try to cook what he cooked, you could not imitate it, because he is a good cook? chanrobles virtual law library A Yes, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q So, your admiration developed because of his cooking? chanrobles virtual law library A Yes, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q What favorite dish does he cook that you like, as far as you are concerned? chanrobles virtual law library A Adobo, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q Most often you request him to cook adobo for you? chanrobles virtual law library A Yes, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q That is precisely one of the reasons why you also admire him? chanrobles virtual law library A That is also a part, Your Honor, chanrobles virtual law library Q Whenever you request him to cook adobo for you, he always accommodate you? chanrobles virtual law library A Yes, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q As a matter of fact, the moment that he starts cooking adobo, you could smell it already? chanrobles virtual law library A Yes, Your Honor, chanrobles virtual law library Q That starts your admiration for him.chanroblesvirtualawlibrary chanrobles virtual law library A Yes, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q And in return you reciprocate? chanrobles virtual law library A Yes, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q What kind of reciprocation do you give to Alberto Opida, whenever you admire his cooking of adobo for you, cooking just for you? chanrobles virtual law library

A None, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q Whenever he cooks adobo, he was singing? chanrobles virtual law library A Sometimes, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q What kind of song? chanrobles virtual law library A He is singing a song with intended for Cora, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q And you were also affected by it? chanrobles virtual law library A No, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q You mean to say, you are not very fond of emotional songs? chanrobles virtual law library A I am not, because Cora is not minding him, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q But sometimes he sings in the absence of Cora because, as you said, he is cooking adobo for you? chanrobles virtual law library A Yes, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q What does he sings (sic) for you? chanrobles virtual law library A He sings many songs, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q For example, give the title chanrobles virtual law library A Milagro, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q He also sings Diyos Lamang Ang Nakakaalam? chanrobles virtual law library A Sometimes, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q He also sings Kapantay ay Langit? chanrobles virtual law library A Yes, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q He also sings Sapagkat Tayo'y Tao Lamang? chanrobles virtual law library A I did not hear, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q But, you said he also sings even in the absence of Cora? chanrobles virtual law library A Yes, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q You smell adobo while he cooks and sings. So, you developed admiration also? chanrobles virtual law library

A Little only, Your Honor. Q One way or another you have appreciated him, but the only thing, as you know, he is related to Cora in the same way? A Yes, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library Q That is why you are testifying in his favor? Because of the smell of adobo and his songs and it is an admiration. Therefore, there is that tendency to testify in his favor? chanrobles virtual law library A Yes, Your Honor. 16 On direct examination, Opida challenged his extrajudicial confession, claiming it had been obtained without observance of the rights available under Article IV, Section 20 of the Constitution, particularly the right to counsel. 17 Parenthetically, the extrajudicial confession of Marcelo was also made without assistance of counsel. 18 Opida also testified, under questioning from his counsel, that he had been repeatedly hit with a "dos por dos" by a police officer while he was being investigated. 19 chanrobles virtual law library We have consistently held that the rights guaranteed during a custodial investigation are not supposed to be merely communicated to the suspect, especially if he is unlettered, but must be painstakingly explained to him so he can understand their nature and significance. Moreover, manhandling of any sort will vitiate any extrajudicial confession that may be extracted from him and renders it inadmissible in evidence against him. 20 chanrobles virtual law library Those principles were given mere lip service by the judge, who did not bother to look deeper into the validity of the challenged confessions.chanroblesvirtualawlibrary chanrobles virtual law library Given the obvious hostility of the judge toward the defense, it was inevitable that all the protestations of the accused in this respect would be, as they in fact were, dismissed. And once the confessions were admitted, it was easy enough to employ them as corroborating evidence of the claimed conspiracy among the accused.chanroblesvirtualawlibrary chanrobles virtual law library The accused are admittedly notorious criminals who were probably even proud of their membership in the Commando gang even as they flaunted their tattoos as a badge of notoriety. 21 Nevertheless, they were entitled to be presumed innocent until the contrary was proved and had a right not to be held to answer for a criminal offense without due process of law. 22 chanrobles virtual law library The judge disregarded these guarantees and was in fact all too eager to convict the accused, who had manifestly earned his enmity. When he said at the conclusion of the trial, "You want me to dictate the decision now?" 23, he was betraying a pre-judgment long before made and obviously waiting only to be formalized.chanroblesvirtualawlibrary chanrobles virtual law library The scales of justice must hang equal and, in fact, should even be tipped in favor of the accused because of the constitutional presumption of innocence. Needless to stress, this right is available to every accused, whatever his present circumstance and no matter how dark and repellent his past. Despite their sinister connotations in our society, tattoos are at best dubious adornments only and

surely not under our laws indicia of criminality. Of bad taste perhaps, but not of crime.chanroblesvirtualawlibrary chanrobles virtual law library In any event, convictions are based not on the mere appearance of the accused but on his actual commission of crime, to be ascertained with the pure objectivity of the true judge who must uphold the law for all without favor or malice and always with justice.chanroblesvirtualawlibrary chanrobles virtual law library Accused-appellants Opida and Marcelo, who have been imprisoned since 1976, have sent us separate letters pleading for the resolution of their death sentences one way or the other once and for all. Considering the way they were tried, we now declare that they should not be detained in jail a minute longer. While this is not to say that the accused are not guilty, it does mean that, because their constitutional rights have been violated, their guilt, if it exists, has not been established beyond reasonable doubt and so cannot be pronounced. Due process has stayed the uneven hand of the quick condemnor and must set the defendants free. WHEREFORE, the conviction of Alberto Opida and Virgilio Marcelo is reversed and they are hereby ordered released immediately. No costs. SO ORDERED. Abad Santos, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr. and Paras, JJ., concur. Feria and Fernan JJ., are on leave. SUPREME COURT Baguio City THIRD DIVISION G.R. NO. 188104 : April 23, 2010 PEOPLE OF THE PHILIPPINES, Appellee, vs. BENANCIO MORTERA y BELARMINO, Appellant. DECISION MENDOZA, J.: This is an appeal from the January 23, 2009 Decision1ca of the Court of Appeals which affirmed with modification the Decision2ca of the Regional Trial Court, Branch 16, Zamboanga City (RTC), in Criminal Case No. 19311, which found accused Benancio3ca Belarmino guilty beyond reasonable doubt of the crime of murder for the killing of one Robelyn Rojas. The accusatory portion of the Amended Information4ca charging the accused with murder reads: That on or about August 25, 2002, in the City of Zamboanga, Philippines and within the jurisdiction of this Honorable Court, the above named accused, armed with a knife, by means of treachery and with

intent to kill, did then and there willfully, unlawfully and feloniously, assault, attack and stab from behind with the use of said weapon that he was then armed with, at the person of ROBELYN ROJAS y MALLARI, employing means, manner and form which tended directly and specially to insure its execution without any danger to the person of the accused, and as a result of which attack, the said Robelyn Rojas y Mallari sustained stabbed wound on the fatal part of the latter's body which directly caused his death to the damage and prejudice of the heirs of said victim. CONTRARY TO LAW. Upon arraignment on February 6, 2004, the accused pleaded "Not Guilty."5ca At the trial, the prosecution presented the following witnesses: (1) Ramil Gregorio, an eyewitness; (2) Jovel Veales, another eyewitness; (3) Dr. Jamella Marbella, examining physician; (4) Leticia Rojas, mother of Robelyn; and (5) PO1 Yaser Hakim. The prosecution's version of the incident, as found by the trial court and adopted by the Office of the Solicitor General, appears in the Appellee's Brief6ca as follows: Robelyn Mallari Rojas, 23 years old, single, was stabbed and killed on August 25, 2002 at Cabato Lane, Gov. Camins, Zamboanga City. Post mortem examination conducted by Dr. Jamella Marbella, Medical Officer V of Zamboanga City Health Office showed that Robelyn Rojas sustained the following injuries: 1. Penetrating wound, clean edges, 2-5 cm width 1.5 cm. gaping located at 5 cm. from spine below the left sub-scapular region. 19 cm. deep upward towards axilla, and 11 cm. deep downward towards left flank region. 2. Linear abrasion 5.5 cm. in length at the left lateral aspect of left arm (Ex. "B"). The cause of his death was cardio pulmonary arrest probably secondary to hemorrhagic shock secondary to stab wound, penetrating left back (Exh. "A-1"). Prosecution witness Ramil Gregorio y Toribio, 24 years old, single, testified that on August 25, 2002, at about 3:00 o'clock in the afternoon, he together with Jovel Veales, Archie Saavedra, John Carpio, Plong Siano and Alberto Rojas were drinking tuba at Cabato Lane, near Acapulco Drive, Governor Camins, Zamboanga City. Four of them were sitting on a chair leaning on a concrete wall while two of their companions sat on the ground. They have just started drinking when Benancio Mortera, Jr. arrived. He wanted to hit Alberto Rojas with a Nescafe glass. Alberto Rojas ran away. Mortera said, "Sayang." He listened while the group of Ramil Gregorio were (sic) singing accompanied by a guitar. Jomer Diaz, brother-in-law of Alberto Diaz, arrived. He bought something from a store five meters away from the place where Gregorio and his companions were drinking. Mortera said, "Here comes another Rojas." Gregorio and his companions told Jomer Diaz to run away. Mortera hurled a stone at Diaz but the latter was not hit. Mortera left but he said that he will return. After a few minutes, Mortera came back. When Jomer Diaz ran, Robelyn Rojas, brother of Alberto Rojas went to Jomer. Mortera met Robelyn at a distance of about seven meters from the place where Ramil Gregorio and his

companions were drinking. Mortera and Robelyn discussed with each other. After their discussion, Mortera and Robelyn shook hands. Robelyn turned his face and walked three steps. Mortera suddenly stabbed Robelyn Rojas at the back with a knife about 9 inches long. Robelyn was hit at the back. After stabbing Robelyn, Mortera ran away. Robelyn Rojas tried to chase Mortera but he was not able to catch up with the latter. Robelyn fell down mortally wounded. He was brought to the hospital by his brother Ricky but he was [pronounced] dead on arrival at the hospital (Exh. "A"). Jovel Veales y Bandian, 23 years old, who was drinking together with Ramil Gregorio, Archie Saavedra, John Carpio, Plong Siano and Alberto Rojas, in the afternoon of August 25, 2002 corroborated Ramil Gregorio's testimony. Mrs. Leticia Rojas y Mallari, 48 years old, married, is the mother of Robelyn Rojas y Mallari. She testified that Robelyn is one of her eight children. xxx She was at work at Zamboanga Puericulture Lying-in Maternity Hospital as laundry woman when her daughter Marilyn called her by telephone informing her that Robelyn was stabbed. She went to Western Mindanao Medical Center where she saw Robelyn already dead with stab wound at the back. At past 6:00 o'clock in the evening, Robelyn's body was brought to Remedios Funeral Parlor. Mrs. Rojas testified that she spent a total of Php38,653.00 in connection with her son's death (Exh. "J"; "J-1", "J-1-A" to "J-1-V"). Although the accused pleaded not guilty when arraigned,7ca during the trial, he admitted having stabbed the victim whom he referred to as Tonying, but claimed self-defense.8ca By his account, after leaving his uncle's house at Gov. Camins, he passed by a corner and saw a group of people drinking. They were Ramil Gregorio, Jonel Veales and Tonying. Upon seeing him, Tonying ran away and called his brother, Alberto Rojas. When the accused was about to reach the main road, Alberto Rojas, Tonying and a certain "Duk" (brother-in-law of Tonying) accosted him and asked him for liquor money. When he refused, the three men got angry. After telling them that he had to go, Tonying hit him with a spray gun (for painting), causing him to fall down. While he was in a supine position, Tonying attempted to hit him again. It was at that point that he was able to get hold of his knife and thrust it forward and hit someone. He did not know who got stabbed. He then immediately fled to Ayala and later to Lintangan, Zamboanga del Norte.9ca The defense witness, Roden Macasantos, claimed that he was drinking with the group of Alberto Rojas when he saw the accused having an argument with Jomer Diaz. After they had pacified the two, he saw Diaz run away. Later, he returned with Robelyn Rojas. Robelyn also argued with the accused, and they were likewise pacified by the others in the group. The dispute apparently settled, the group left Robelyn and the accused alone. After about five minutes, they heard women shouting. When they went to find out what it was all about, they saw Robelyn wounded. He, however, did not see the person who stabbed him.10ca On January 23, 2007, the RTC rendered judgment finding the accused guilty of murder. The trial court disposed of the case as follows: WHEREFORE, the Court finds the accused BENANCIO MORTERA, JR. Y BELARMINO GUILTY BEYOND REASONABLE DOUBT of the crime of murder, as principal, for the unjustified killing of

Robelyn Rojas y Mallari and SENTENCES said accused to suffer the penalty of RECLUSION PERPETUA and its accessory penalties, to pay the heirs of the victim Php50, 000.00 as indemnity for his death; Php50,000.00 as moral damages; Php30,000.00 as exemplary damages; Php38,653.00 as actual damages; and to pay the costs. SO ORDERED. In rejecting the claim of self-defense, the trial court stated that it was not worthy of belief as it was belied by the credible testimonies of the prosecution witnesses.11ca The accused appealed to the Court of Appeals raising the issues of denial of due process of law and his right to an impartial trial. He claimed that the trial court judge, Judge Jesus Carbon, was hostile towards him and prejudged his guilt as could be inferred from his "prosecutor-like" conduct. The accused likewise reiterated his claim of self-defense. In its decision, the Court of Appeals affirmed the decision of the RTC with modification as to the civil liability of the accused. The CA ruled that the trial judge did not transgress the standard of "cold neutrality" required of a magistrate and added that the questions he propounded were "substantially clarificatory." The claim of self-defense was rejected for failure to prove the element of unlawful aggression by clear and convincing evidence. With respect to his civil liability, temperate damages in the amount of P25,000.00 was awarded, in lieu of the actual damages awarded by the trial court, for failure of Leticia Rojas to substantiate her claim with official receipts. The amount of exemplary damages was likewise reduced to P25,000.00. Specifically, the dispositive portion of the decision of the Court of Appeals reads: WHEREFORE, in view of the foregoing, the Decision dated January 16, 2007 in Criminal Case No. 19311 finding accused-appellant guilty beyond reasonable doubt of the crime of Murder and sentencing him to suffer the penalty of reclusion perpetua and its accessory penalties is hereby AFFIRMED WITH MODIFICATION that accused-appellant is ORDERED to pay the heirs of victim Robelyn Rojas the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P25,000.00 as temperate damages in lieu of actual damages, and P25,000 as exemplary damages; and costs. SO ORDERED. Still not satisfied, the accused now comes before this Court.12ca In seeking his acquittal, he has assigned three errors for the court's resolution, to wit: (i) there was a denial of his right to due process and of his right to have an impartial trial; (ii) there was no appreciation of the justifying circumstance of self defense; and (iii) assuming that not all the requirements of self-defense were present, there was no appreciation of the special mitigating circumstance of incomplete self-defense. After an assiduous assessment of the records, the Court finds no reason to reverse the judgment of conviction or even appreciate the special mitigating circumstance of incomplete self-defense. We, thus, affirm.

For a better grasp of the assertion of the defense that he was denied his right to due process of law and his right to an impartial trial, we quote at length the transcript of stenographic notes. Thus: DIRECT EXAMINATION ON THE WITNESS VENANCIO MORTERA, JR. COURT: Q: During the arraignment you said you did not kill this Robelyn Rojas. Did you say that? A: Yes, Your Honor. COURT: And, it's here where the accused interposed a negative defense because, you said you have nothing to do with the death of Robelyn Rojas. WITNESS: As far as I could remember Your Honor, he hit me then I fell down then he still approached me so what I did, I was able to thrust my knife. COURT: Q: You were suggesting that you might have killed him in self-defense? A: Yes, Your Honor. Q: As if there is something wrong to your story last February 6, 2004, you invoked a negative defense? A: Not intentional. Q: So, you are changing your story now? ' From a negative defense you are now asserting affirmative defense? A: He hit me first then I fell down just the same he continued approaching me so I was able to do it? COURT: In effect, while you were in the middle of the river you are changing boat and when you change boat in the middle of the river, sometimes you get drowned. Because you told even your own lawyer Atty. Mendoza, said that you interpose a negative defense that is why we did not have reverse trial. You were not even telling the truth to Atty. Mendoza. Because had you told him the truth, it could have been' Q: Why did Atty. Mendoza, invoke negative defense? A: Yes, Your Honor. ATTY. MENDOZA: Yes, Your Honor, I insisted that, in fact, he told me that he don't [sic] know that person by that name'

COURT: Well, if he had nothing to do with the death of said person, negative defense. So, if you are not telling the truth to your lawyer, how would I know now that you are telling the truth?' Anyway if you killed a person you will have to pay for it Mr. Mortera, do you agree also? WITNESS: Yes, Your Honor. COURT: So, cross-examination. PROSECUTOR LEDESMA: CROSS EXAMINATION ON THE WITNESS VENANCIO MORTERA, Jr. Prosecutor Ledesma: xxx Q: And you said earlier that it was this Tingay [deceased] who attacked you with this spray gun then you fell down? A: Yes. Then he still approached me and at the same time asked money and I asked "for what?" ' Then he said, for their vices. Q: You were having this conversation while you were down? A: Not yet. Q: He was holding the spray gun on his hand, correct? A: Yes. Q: Then you said while you were down you were able to thrust your knife upward, correct? A: Well, after hitting me, when I was already down he was still approaching me and wanted to hit me again. Q: Yes, approaching you and in the process of hitting you, that was the time that you thrusted [sic] the knife, correct? A: Yes. Q: And it was you, who advanced personally that you were able to hit him, correct? A: Yes. COURT:

Q: You felt the blade of the knife slicing a person? A: Yes, Your Honor. Q: As if the knife hit a pig you were used to selling? A: That knife is stainless used in cutting rope. Q: It's a long white knife? A: Not so long Your Honor Q: But, enough to kill a person? A: Somewhat like that Your Honor. Q: But, not enough to kill a pig? A: No, Your Honor. That is only used in cutting rope. Q: Where is that evil knife? A: Well, it is in the place at Bagsakan where we are having a place. COURT: You tell them to throw it away or bury that knife because that is a bad knife. So long as that knife is there the one in possession of that will always have bad luck. It is cursed. Eventually, Tingay is already dead. Q: Did your uncle also tell you that Tingay, sustained a single wound at his back? A: Yes. COURT: Q: So, when you stabbed him he was trying to hit you with a very small spray gun. How was it that he was hit at the back? A: Well, when he was in the act of hitting me again, I thrusted [sic] the knife to' shall we say towards him Your Honor. Q: That is why, it is impossible because if he was trying to hit you with a spray gun, you thrusted [sic] the knife towards him, how was it that he was hit at the back? A: He was hit Your Honor, when he was in the act of hitting me again. COURT: Proceed, Atty. Ledesma.

xxx COURT: Robelyn Rojas, was 23 years old when you killed him. WITNESS: I do not know the age. COURT: Of course, you do not know. The life span of a Filipino now is about 70 years old, Fiscal? .. Because we expect that long. So, if you did not kill him he will still have 47 years to live. PROSECUTOR LEDESMA: I believed [sic] 80 years Your Honor. COURT: 80 for purposes of compensation. PROSECUTOR LEDESMA: Yes. COURT: He has 57 years more to live. That is the trouble of killing people because you are depriving the person of his right to live and even if what you are saying is true, you could not have been killed with that small spray gun' You have no right to stab him. Besides, that is not what your witness said even your own witness here is not supporting your story. Who is that witness? WITNESS: Denden Macasantos' COURT: Yes, Denden Macasantos. He did not declare what you are saying now. You are just making a story. Q: So, even the story of your witness who I think was telling the truth, don't [sic] support your story Mr. Mortera' Your story now is different' Did you hear Denden? A: Yes. Q: They did not tell the same story as you are saying now about the spray gun being used to hit you? A: I do not know with them Your Honor, but in my case I was really hit with that spray gun.

Q: Were you injured? A: No. Q: That's the whole trouble. Why will you have injury when you were not hit? A: I was hit Your Honor. Q: You were hit? A: Yes, I fell down and he continued approaching me. COURT: You did more than what Robelyn, did to you. You killed him. Proceed. PROSECUTOR LEDESMA: Q: You did not report to the police that incident involving Tingay and his group, correct? A: Yes, I did not. Q: Instead, you immediately left for Ayala? A: Well, after the incident I ran away towards Ayala. COURT: Q: By your running away because you were afraid, you were committing something wrong? A: That is why, I ran away I have done something I was able to kill somebody. Q: Why did you run to Ayala then run to Lintangan then return to Acapulco Drive, knowing that you have a Warrant of Arrest, you went back to Lintangan? ' Because you felt guilty? A: Yes, Your Honor. Q: Robelyn, has seven brothers and sisters? ' So, maybe you should have some vacation in Jail you are supposed to serve? A: Yes. (Italics supplied) Citing the foregoing as basis, the accused argues that Judge Jesus Carbon, Jr. displayed his hostility towards him and condemned him even before the defense could rest its presentation of evidence. By saying that he was "just making a story," the judge already concluded his guilt during trial. The Court is not unaware of the case of Tabuena v. Sandiganbayan,13 where it was written: The Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides. But not only should his examination be limited to asking clarificatory questions, the right should be

sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct of trial' hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and Peralta'. The "cold neutrality of an impartial judge" requirement of due process was certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate and advocate' A substantial portion of the TSN was incorporated in the majority opinion not to focus on "numbers" alone, but more importantly to show that the court questions were in the interest of the prosecution and which thus depart from the common standard of fairness and impartiality. (emphasis added) The situation in the case at bench is, however, different. As correctly pointed out by the Court of Appeals, although the trial judge might have made improper remarks and comments, it did not amount to a denial of his right to due process or his right to an impartial trial. Upon perusal of the transcript as a whole, it cannot be said that the remarks were reflective of his partiality. They were not out of context. Not only did the accused mislead the court by initially invoking a negative defense only to claim otherwise during trial, he was also not candid to his own lawyer, who was kept in the dark as to his intended defense. The accused having admitted the killing, a reverse order of trial could have proceeded.14ca As it turned out, the prosecution undertook to discharge the burden of proving his guilt, when the burden of proof to establish that the killing was justified should have been his.15 Most probably, the trial judge was peeved at the strategy he adopted. The trial judge cannot be faulted for having made those remarks, notwithstanding the sarcastic tone impressed upon it. The sarcasm alone cannot lead us to conclude that the trial judge "had taken the cudgels for the prosecution. The invocation of Opida16ca fails to persuade us either. The facts therein are not at all fours with the case at bench. In Opida, we did not fail to notice the "malicious," "sadistic" and "adversarial" manner of questioning by the trial judge of the accused therein, including their defense witness. In Opida, the accused never admitted the commission of the crime, and so the burden of proof remained with the prosecution. In his second assigned error, the accused invokes self-defense. By asserting it, however, it became incumbent upon him to prove by clear and convincing evidence that he indeed had acted in defense of himself. The requisites of self-defense are: (1) unlawful aggression; (2) reasonable necessity of the means employed to repel or prevent it; and (3) lack of sufficient provocation on the part of the person defending himself.17 The issue of whether or not the accused acted in self-defense is undoubtedly a question of fact, and it is well entrenched in jurisprudence that findings of fact of the trial court command great weight and respect unless patent inconsistencies are ignored or where the conclusions reached are clearly unsupported by evidence.18ca In the present case, we find no cogent reason to disturb the decision of

the trial court, as modified by the CA. In debunking his claim, we quote with approval the ruling of the CA. In the instant case, accused-appellant claims that there was unlawful aggression on the part Robelyn Rojas when the latter allegedly hit him with a spray gun. However, except this self-serving statement, no other evidence was presented to prove that indeed he was hit by Robelyn. Accused-appellant failed to show where he was hit and what injuries he sustained, if any. Moreover, his own defense witness Roden Macasantos did not see him being hit by a spray gun. On the contrary, the prosecution has clearly shown that before Robelyn was stabbed, the two even discussed with each other and accusedappellant even shook hands with him. Moreover, if indeed it was true that Robelyn was carrying a spray gun and tried to hit him, accused-appellant, while he was in a supine position, could have easily just flaunted his knife to scare his alleged attackers away. On the other hand, even if we assume to be true that he was in a supine position when he thrust the knife at his attacker, it is however impossible that the back of Robelyn would be hit, unless the latter could also fell (sic) on his back, which is again far from reality. In a myriad of cases, it has been ruled that the location, number or seriousness of the stab or hack wounds inflicted on the victim are important indicia which may disprove accused's plea of self defense. In the instant case, it is clear that the victim was stabbed at the back negating any indication that accused-appellant acted in self defense. Finding the primordial requisite of unlawful aggression wanting, the Court cannot appreciate the mitigating circumstance of incomplete self-defense. As regards damages, we affirm the modification made by the Court of Appeals. Considering that only P14,653.50 of the P38,653.00 actual damages awarded by the trial court is supported by receipts, the award of P25,000.00 as temperate damages is proper.19ca We, however, reinstate the amount of exemplary damages to P30,000.00 to be in accord with current jurisprudence.20 WHEREFORE, the January 23, 2009 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00518-MIN is AFFIRMED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-46392 November 10, 1986 EMMA DELGADO, Petitioner, vs. HON. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, Respondents.

PARAS, J.: chanrobles virtual law library

This is a petition for "Certiorari and mandamus with prayer for a Writ of preliminary injunction" to review the following orders: (a) Order of the Court of Appeals dated April 20, l977 denying petitioner's Urgent Motion to Set Aside Entry of Judgment, to Recall the Records and allow the movant to personally receive copy of the decision dated February 16, 1977; chanrobles virtual law library (b) Resolution of the Court of Appeals dated June 3, 1977 denying petitioner's Motion for Reconsiderationdated May 23, 1977; and chanrobles virtual law library (c) Order dated May 11, 1977 of the Court of First In- stance of Manila ordering petitioner's arrest and confiscation of her bond. Emma R. Delgado, herein petitioner, together with Gloria C. Tortona, Celia Capistrano and Catalino Bautista alias Atty. Paulino Bautista, the last named still at large, was charged with estafa thru falsification of public and/or official documents resulting in deceiving one Erlinda Rueda, a Medical Technologist, in arranging her travel to the United States.chanroblesvirtualawlibrary chanrobles virtual law library All the accused (except Catalino Bautista) pleaded not guilty upon arraignment and trial on the merits ensued. Herein petitioner Emma R. Delgado was assisted and represented by her counsel de parte, Atty. Lamberto G. Yco. On December 13, 1973, the date set for the continuation of the defense evidence, said Atty. Yco failed to appear despite proper and previous notice. Instead, he sent a telegram requesting for postponement on the ground allegedly that he was sick. No medical certificate was however submitted. The trial fiscal objected, believing that the motion was dilatory because there had been numerous postponements in the past at petitioner's behest. The trial Court sustained the fiscal's objection thereto, considered Emma Delgado to have waived presentation of her evidence, and considered the case submitted for decision.chanroblesvirtualawlibrary chanrobles virtual law library Thereafter, a judgment of conviction was rendered by the trial court, dated March 20, 1974, the dispositive portion of which reads as follows: WHEREFORE, in view of the foregoing, the Court finds the accused Gloria C. Tortona, Emma R. Delgado and Celia Capistrano guilty beyond reasonable doubt of the complex crime of Estafa thru Falsification of Public and/or Official Documents, and each is hereby sentenced to an indeterminate penalty ranging from two (2) years and four (4) months of prision correccional, as minimum, 4 to six (6) years, also of prision correccional, as maximum, to pay a fine of P5,000.00, without subsidiary imprisonment in case of insolvency and to indemnify the offended party Erlinda Ruedas in the amount of P7,431.00. Each is further ordered to pay, jointly and severally, said complainant moral damages in the amount of P5,000.00, and one fourth of the costs of the proceedings.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED.

Accused Gloria C. Tortona did not appeal from the aforesaid decision. Accused Celia Capistrano and petitioner Emma R. Delgado appealed to the Court of Appeals raising the issue of "whether or not on the basis of the evidence and the law the judgment appealed from should be maintained." chanrobles virtual law library On December 6, 1976, the Court of Appeals rendered judgment affirming the decision of the trial court as to herein accused-petitioner Emma R. Delgado and reversing the judgment as to Celia Capistrano, the dispositive part of which judgment reads as follows: IN VIEW WHEREOF, on reasonable doubt, judgment as to appellant Capistrano is reversed with proportionate costs de officio and cancellation of bail bond, but judgment as to appellant Delgado is affirmed with proportionate costs.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. On December 27, PEDRO C. CONSULTA, 1976, an entry of final Appellant, vs. PEOPLE OF THE PHILIPPINES, Appellee, judgment was issued and on February 1, 1977, the records of the case were remanded to the lower court for execution of judgment.chanroblesvirtualawlibrary chanrobles virtual law library Believing that there was irregularity in the sending of notices and copy of the decision as petitioner was not informed or notified of said decision by her counsel on record, Atty. Lamberto G. Yco, herein petitioner filed on February 17, 1977 with respondent Court of Appeals an "Urgent Motion to Set Aside Entry of Judgment, to Recall the Records and All w the Movant to Personally Receive Copy of the Decision.chanroblesvirtualawlibrary chanrobles virtual law library This motion was denied by respondent Court of Appeals in its Resolution dated April 20, 1977.chanroblesvirtualawlibrary chanrobles virtual law library On May 11, 1977 an Order was issued by respondent Court of First Instance of Manila directing the arrest of herein petitioner Emma R. Delgado and the confiscation of her bond for failure to appear at the execution of judgment on May 11, 1977.chanroblesvirtualawlibrary chanrobles virtual law library On May 27, 1977, petitioner filed a Motion for the Reconsideration of the Order denying her Motion to Set Aside Entry of Judgments, etc., invoking as one of the grounds therein, the newly discovered fact that petitioner came to know for the first time only on May 19, 1977 that Atty. Lamberto G. Yco is not a member of the Philippine Bar. Petitioner prayed that she be granted a new trial on the ground that she was deprived of her right to be defended by competent counsel.chanroblesvirtualawlibrary chanrobles virtual law library On June 3, 1977, respondent Court of Appeals denied petitioner's motion, hence, she filed the instant petition before this Court.chanroblesvirtualawlibrary chanrobles virtual law library

The main thrust of petitioner's arguments is that she is entitled to a new trial and therefore, all the assailed orders of respondent courts should be vacated and set aside, because her "lawyer," Atty. Lamberto G. Yco, is not a lawyer.chanroblesvirtualawlibrary chanrobles virtual law library We find the petition impressed with merit chanrobles virtual law library This is so because an accused person is entitled to be represented by a member of the bar in a criminal case filed against her before the Regional Trial Court. Unless she is represented by a lawyer, there is great danger that any defense presented in her behalf will be inadequate considering the legal perquisites and skills needed in the court proceedings. This would certainly be a denial of due process.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the assailed judgment is SET ASIDE, and a new one is hereby rendered, remanding the case to the trial court for new trial. Feria (Chairman), Fernan, Alampay and Gutierrez, Jr., JJ., concur. Republic of the Philippines SUPREME COURT Manila chanroblesvirtuallawlibrary

SECOND DIVISION G.R. No. 179462 : February 12, 2009 DECISION CARPIO MORALES, J.: The Court of Appeals having, by Decision of April 23, 2007,[1] affirmed the December 9, 2004 Decision of the Regional Trial Court of Makati City, Branch 139 convicting Pedro C. Consulta (appellant) of Robbery with Intimidation of Persons, appellant filed the present petition. The accusatory portion of the Information against appellant reads: That on or about the 7th day of June, 1999, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain, and by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously take, steal and carry away complainants NELIA R. SILVESTRE gold necklace worth P3,500.00, belonging to said complainant, to the damage and prejudice of the owner thereof in the aforementioned amount of P3,500.00. CONTRARY TO LAW.[2] (Emphasis in the original, underscoring supplied) From the evidence for the prosecution, the following version is gathered:

At about 2:00 oclock in the afternoon of June 7, 1999, private complainant Nelia R. Silvestre (Nelia), together with Maria Viovicente (Maria) and Veronica Amar (Veronica), boarded a tricycle on their way to Pembo, Makati City. Upon reaching Ambel Street, appellant and his brother Edwin Consulta (Edwin) blocked the tricycle and under their threats, the driver alighted and left. Appellant and Edwin at once shouted invectives at Nelia, saying Putang ina mong matanda ka, walanghiya ka, kapal ng mukha mo, papatayin ka namin. Appellant added Putang ina kang matanda ka, wala kang kadala dala, sinabihan na kita na kahit saan kita matiempuhan, papatayin kita. Appellant thereafter grabbed Nelias 18K gold necklace with a crucifix pendant which, according to an alajera in the province, was of 18k gold, and which was worth P3,500, kicked the tricycle and left saying Putang ina kang matanda ka! Kayo mga nurses lang, anong ipinagmamalaki niyo, mga nurses lang kayo. Kami, marami kaming mga abogado. Hindi niyo kami maipapakulong kahit kailan!

Nelia and her companions immediately went to the Pembo barangay hall where they were advised to undergo medical examination. They, however, repaired to the Police Station, Precinct 8 in Comembo, Makati City and reported the incident. They then proceeded to Camp Crame where they were advised to return in a few days when any injuries they suffered were expected to manifest. Nine days after the incident or on June 16, 1999, Nelia submitted a medico-legal report and gave her statement before a police investigator Denying the charge, appellant branded it as fabricated to spite him and his family in light of the following antecedent facts:

He and his family used to rent the ground floor of Nelias house in Pateros. Nelia is his godmother. The adjacent house was occupied by Nelias parents with whom she often quarreled as to whom the rental payments should be remitted. Because of the perception of the parents of Nelia that his family was partial towards her, her parents disliked his family. Nelias father even filed a case for maltreatment against him which was dismissed and, on learning of the maltreatment charge, Nelia ordered him and his family to move out of their house and filed a case against him for grave threats and another for light threats which were dismissed or in which he was acquitted. Appellant went on to claim that despite frequent transfers of residence to avoid Nelia, she would track his whereabouts and cause scandal Appellants witness Darius Pacaa testified that on the date of the alleged robbery, Nelia, together with her two companions, approached him while he was at Ambel Street in the company of Michael Fontanilla and Jimmy Sembrano, and asked him (Pacaa) if he knew a bald man who is big/stout with a big tummy and with a sister named Maria. As he replied in the affirmative, Nelia at once asked him to

accompany them to appellants house, to which he acceded. As soon as the group reached appellants house, appellant, on his (Pacaas) call, emerged and on seeing the group, told them to go away so as not to cause trouble. Retorting, Nelia uttered Mga hayop kayo, hindi ko kayo titigilan. Another defense witness, Thelma Vuesa, corroborated Pacaas account. The trial court, holding that intent to gain on appellants part is presumed from the unlawful taking of the necklace, and brushing aside appellants denial and claim of harassment, convicted appellant of Robbery, disposing as follows: WHEREFORE, premises considered, this Court finds accused PEDRO C. CONSULTA guilty beyond reasonable doubt, as principal of the felony of Robbery with Intimidation of Persons defined and penalized under Article 294, paragraph No. 5, in relation to Article 293 of the Revised Penal Code and hereby sentences him to suffer the penalty of imprisonment from one (1) year, seven (7) months and eleven (11) days of arresto mayor, as minimum, to eight (8) years, eight (8) months and one (1) day of prision mayor, as maximum, applying the Indeterminate Sentence Law, there being no mitigating or aggravating circumstances which attended the commission of the said crime. The said accused is further ordered to pay unto the complainant Nelia Silvestre the amount of P3,500.00 representing the value of her necklace taken by him and to pay the costs of this suit. SO ORDERED. (Italics in the original, underscoring supplied) The appellate court affirmed appellants conviction with modification on the penalty. In his present appeal, appellant raises the following issues:

(1) Whether or not appellant was validly arraigned; (2) Whether or not appellant was denied due process having been represented by a fake lawyer during arraignment, pre-trial and presentation of principal witnesses for the prosecution; (3) Whether or not appellant has committed the crime of which he was charged; and (4) Whether or not the prosecution was able to prove the guilt of the appellant beyond reasonable doubt. (Underscoring supplied) The first two issues, which appellant raised before the appellate court only when he filed his Motion for Reconsideration of said courts decision, were resolved in the negative in this wise: On the matter of accused-appellants claim of having been denied due process, an examination of the records shows that while accused-appellant was represented by Atty. Jocelyn P. Reyes, who seems not a lawyer, during the early stages of trial, the latter withdrew her appearance with the conformity of the former as early as July 28, 2000 and subsequently, approved by the RTC in its Order dated August 4, 2000. Thereafter, accused-appellant was represented by Atty. Rainald C. Paggao from the Public Defenders (Attorneys) Office of Makati City. Since the accused-appellant was already represented by a member of the Philippine Bar who principally handled his defense, albeit unsuccessfully, then he cannot now be heard to complain about having been denied of due process.[3] (Underscoring supplied) That appellants first counsel may not have been a member of the bar does not dent the proven fact that appellant prevented Nelia and company from proceeding to their destination. Further, appellant was afforded competent representation by the Public Attorneys Office during the presentation by the

prosecution of the medico-legal officer and during the presentation of his evidence. People v. Elesterio[4] enlightensAs for the circumstance that the defense counsel turned out later to be a nonlawyer, it is observed that he was chosen by the accused himself and that his representation does not change the fact that Elesterio was undeniably carrying an unlicensed firearm when he was arrested. At any rate, he has since been represented by a member of the Philippine bar, who prepared the petition for habeas corpus and the appellants brief. (Underscoring supplied)

On the third and fourth issues. Article 293 of the Revised Penal Code under which appellant was charged provides: Art. 293. Who are guilty of robbery. Any person who, with intent to gain, shall take any personal property belonging to another, by means of violence against or intimidation of any person, or using force upon anything, shall be guilt of robbery. (Italics in the original, underscoring supplied) Article 294, paragraph 5, under which appellant was penalized provides: Art. 294. Robbery with violence against or intimidation of persons Penalties. Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer:

5. The penalty of prision correccional in its maximum period to prision mayor in its medium period in other cases. x x x (Citations omitted; italics in the original; underscoring supplied) The elements of robbery are thus: 1) there is a taking of personal property; 2) the personal property belongs to another; 3) the taking is with animus lucrandi; and 4) the taking is with violence against or intimidation of persons or with force upon things. Animus lucrandi or intent to gain is an internal act which can be established through the overt acts of the offender. It may be presumed from the furtive taking of useful property pertaining to another, unless special circumstances reveal a different intent on the part of the perpetrator.[5] The Court finds that under the above-mentioned circumstances surrounding the incidental encounter of the parties, the taking of Nelias necklace does not indicate presence of intent to gain on appellants part. That intent to gain on appellants part is difficult to appreciate gains light given his undenied claim that his relationship with Nelia is rife with ill-feelings, manifested by, among other things, the filing of complaints[6] against him by Nelia and her family which were subsequently dismissed or ended in his acquittal.[7] Absent intent to gain on the part of appellant, robbery does not lie against him. He is not necessarily scot-free, however. From the pre-existing sour relations between Nelia and her family on one hand, and appellant and family on the other, and under the circumstances related above attendant to the incidental encounter of

the parties, appellants taking of Nelias necklace could not have been animated with animus lucrandi. Appellant is, however, just the same, criminally liable. For [w]hen there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.[8] SEC. 5. When an offense includes or is included in another. An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter.[9] (Italics in the original, underscoring supplied) Grave coercion, like robbery, has violence for one of its elements. Thus Article 286 of the Revised Penal Code provides: Art. 286. Grave coercions. The penalty of prision correccional and a fine not exceeding six thousand pesos shall be imposed upon any person who, without authority of law, shall, by means of violence, threats or intimidation, prevent another from doing something not prohibited by law or compel him to do something against his will, whether it be right or wrong. If the coercion be committed in violation of the exercise of the right of suffrage or for the purpose of compelling another to perform any religious act or to prevent him from exercising such right or from doing such act, the penalty next higher in degree shall be imposed. (Italics in the original; underscoring supplied) The difference in robbery and grave coercion lies in the intent in the commission of the act. The motives of the accused are the prime criterion: The distinction between the two lines of decisions, the one holding to robbery and the other to coercion, is deemed to be the intention of the accused. Was the purpose with intent to gain to take the property of another by use of force or intimidation? Then, conviction for robbery. Was the purpose, without authority of law but still believing himself the owner or the creditor, to compel another to do something against his will and to seize property? Then, conviction for coercion under Article 497 of the Penal Code. The motives of the accused are the prime criterion. And there was no common robber in the present case, but a man who had fought bitterly for title to his ancestral estate, taking the law into his own hands and attempting to collect what he thought was due him. Animus furandi was lacking.[10] (Italics in the original; citations omitted; underscoring supplied) The Court finds that by appellants employment of threats, intimidation and violence consisting of, inter alia, uttering of invectives, driving away of the tricycle driver, and kicking of the tricycle, Nelia was prevented from proceeding to her destination. Appellant is thus guilty of grave coercion which carries the penalty of prision correccional and a fine not exceeding P6,000. There being no aggravating or mitigating circumstance, the penalty shall be imposed in its medium term. Applying the Indeterminate Sentence Law, the minimum that may be imposed is anywhere from one (1) month and one (1) day to six (6) months of arresto mayor, as minimum, and from two (2) years, four (4) months and one (1) day to four (4) years and two (2) months of prision correccional, as maximum. WHEREFORE, the Court SETS ASIDE the challenged Court of Appeals Decision and another is rendered finding appellant,

Pedro C. Consulta, GUILTY beyond reasonable doubt of Grave Coercion and sentences him to suffer the indeterminate penalty of from six (6) months of arresto mayor as minimum, to three (3) years and six (6) months of prision correccional medium as maximum. Appellant is further ordered to return the necklace, failing which he is ordered to pay its value, Three Thousand Five Hundred (P3,500) Pesos.

Costs de oficio. SO ORDERED. Republic of the Philipppines SUPREME COURT Manila EN BANC [G.R. No. 139465. October 17, 2000] SECRETARY OF JUSTICE, Petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, Respondents. RESOLUTION PUNO, J.: chanroblesvirtuallawlibrary On January 18, 2000, by a vote of 9-6, we dismissed the petition at bar and ordered the petitioner to furnish private respondent copies of the extradition request and its supporting papers and to grant him a reasonable period within which to file his comment with supporting evidence.[1] chanroblesvirtuallawlibrary On February 3, 2000, the petitioner timely filed an Urgent Motion for Reconsideration. He assails the decision on the following grounds: chanroblesvirtuallawlibrary "The majority decision failed to appreciate the following facts and points of substance and of value which, if considered, would alter the result of the case, thus:chanroblesvirtuallawlibrary I. There is a substantial difference between an evaluation process antecedent to the filing of an extradition petition in court and a preliminary investigation.chanroblesvirtuallawlibrary II. Absence of notice and hearing during the evaluation process will not result in a denial of fundamental fairness.chanroblesvirtuallawlibrary III. In the evaluation process, instituting a notice and hearing requirement satisfies no higher objective.chanroblesvirtuallawlibrary IV. The deliberate omission of the notice and hearing requirement in the Philippine Extradition Law is intended to prevent flight.chanroblesvirtuallawlibrary

V. There is a need to balance the interest between the discretionary powers of government and the rights of an individual.chanroblesvirtuallawlibrary VI. The instances cited in the assailed majority decision when the twin rights of notice and hearing may be dispensed with in this case results in a non sequitur conclusion.chanroblesvirtuallawlibrary VII. Jimenez is not placed in imminent danger of arrest by the Executive Branch necessitating notice and hearing.chanroblesvirtuallawlibrary VIII. By instituting a 'proceeding' not contemplated by PD No. 1069, the Supreme Court has encroached upon the constitutional boundaries separating it from the other two co-equal branches of government.chanroblesvirtuallawlibrary IX. Bail is not a matter of right in proceedings leading to extradition or in extradition proceedings."[2] chanroblesvirtuallawlibrary On March 28, 2000, a 58-page Comment was filed by the private respondent Mark B. Jimenez, opposing petitioners Urgent Motion for Reconsideration. chanroblesvirtuallawlibrary On April 5, 2000, petitioner filed an Urgent Motion to Allow Continuation and Maintenance of Action and Filing of Reply. Thereafter, petitioner filed on June 7, 2000 a Manifestation with the attached Note 327/00 from the Embassy of Canada and Note No. 34 from the Security Bureau of the Hongkong SAR Government Secretariat. On August 15, 2000, private respondent filed a Manifestation and Motion for Leave to File Rejoinder in the event that petitioner's April 5, 2000 Motion would be granted. Private respondent also filed on August 18, 2000, a Motion to Expunge from the records petitioner's June 7, 2000 Manifestation with its attached note verbales. Except for the Motion to Allow Continuation and Maintenance of Action, the Court denies these pending motions and hereby resolves petitioner's Urgent Motion for Reconsideration. chanroblesvirtuallawlibrary The jugular issue is whether or not the private respondent is entitled to the due process right to notice and hearing during the evaluation stage of the extradition process. chanroblesvirtuallawlibrary We now hold that private respondent is bereft of the right to notice and hearing during the evaluation stage of the extradition process. chanroblesvirtuallawlibrary First. P.D. No. 1069[3] which implements the RP-US Extradition Treaty provides the time when an extraditee shall be furnished a copy of the petition for extradition as well as its supporting papers, i.e., after the filing of the petition for extradition in the extradition court, viz: chanroblesvirtuallawlibrary "Sec. 6. Issuance of Summons; Temporary Arrest; Hearing; Service of Notices. - (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order . . . Upon receipt of the answer, or should the accused after having received the summons fail to answer within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof.chanroblesvirtuallawlibrary

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case."chanroblesvirtuallawlibrary It is of judicial notice that the summons includes the petition for extradition which will be answered by the extraditee. chanroblesvirtuallawlibrary There is no provision in the RP-US Extradition Treaty and in P.D. No. 1069 which gives an extraditee the right to demand from the petitioner Secretary of Justice copies of the extradition request from the US government and its supporting documents and to comment thereon while the request is still undergoing evaluation. We cannot write a provision in the treaty giving private respondent that right where there is none. It is well-settled that a "court cannot alter, amend, or add to a treaty by the insertion of any clause, small or great, or dispense with any of its conditions and requirements or take away any qualification, or integral part of any stipulation, upon any motion of equity, or general convenience, or substantial justice."[4] chanroblesvirtuallawlibrary Second. All treaties, including the RP-US Extradition Treaty, should be interpreted in light of their intent. Nothing less than the Vienna Convention on the Law of Treaties to which the Philippines is a signatory provides that "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose."[5] (emphasis supplied) The preambular paragraphs of P.D. No. 1069 define its intent, viz: chanroblesvirtuallawlibrary "WHEREAS, under the Constitution[,] the Philippines adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations;chanroblesvirtuallawlibrary WHEREAS, the suppression of crime is the concern not only of the state where it is committed but also of any other state to which the criminal may have escaped, because it saps the foundation of social life and is an outrage upon humanity at large, and it is in the interest of civilized communities that crimes should not go unpunished;chanroblesvirtuallawlibrary WHEREAS, in recognition of this principle the Philippines recently concluded an extradition treaty with the Republic of Indonesia, and intends to conclude similar treaties with other interested countries;chanroblesvirtuallawlibrary x x x." (emphasis supplied)chanroblesvirtuallawlibrary It cannot be gainsaid that today, countries like the Philippines forge extradition treaties to arrest the dramatic rise of international and transnational crimes like terrorism and drug trafficking. Extradition treaties provide the assurance that the punishment of these crimes will not be frustrated by the frontiers of territorial sovereignty. Implicit in the treaties should be the unbending commitment that the perpetrators of these crimes will not be coddled by any signatory state. chanroblesvirtuallawlibrary It ought to follow that the RP-US Extradition Treaty calls for an interpretation that will minimize if not prevent the escape of extraditees from the long arm of the law and expedite their trial. The submission

of the private respondent, that as a probable extraditee under the RP-US Extradition Treaty he should be furnished a copy of the US government request for his extradition and its supporting documents even while they are still under evaluation by petitioner Secretary of Justice, does not meet this desideratum. The fear of the petitioner Secretary of Justice that the demanded notice is equivalent to a notice to flee must be deeply rooted on the experience of the executive branch of our government. As it comes from the branch of our government in charge of the faithful execution of our laws, it deserves the careful consideration of this Court. In addition, it cannot be gainsaid that private respondents demand for advance notice can delay the summary process of executive evaluation of the extradition request and its accompanying papers. The foresight of Justice Oliver Wendell Holmes did not miss this danger. In 1911, he held: chanroblesvirtuallawlibrary "It is common in extradition cases to attempt to bring to bear all the factitious niceties of a criminal trial at common law. But it is a waste of time . . . if there is presented, even in somewhat untechnical form according to our ideas, such reasonable ground to suppose him guilty as to make it proper that he should be tried, good faith to the demanding government requires his surrender."[6] (emphasis supplied) chanroblesvirtuallawlibrary We erode no right of an extraditee when we do not allow time to stand still on his prosecution. Justice is best served when done without delay. chanroblesvirtuallawlibrary Third. An equally compelling factor to consider is the understanding of the parties themselves to the RP-US Extradition Treaty as well as the general interpretation of the issue in question by other countries with similar treaties with the Philippines. The rule is recognized that while courts have the power to interpret treaties, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is accorded great weight.[7] The reason for the rule is laid down in Santos III v. Northwest Orient Airlines, et al.,[8] where we stressed that a treaty is a joint executive-legislative act which enjoys the presumption that "it was first carefully studied and determined to be constitutional before it was adopted and given the force of law in the country." chanroblesvirtuallawlibrary Our executive department of government, thru the Department of Foreign Affairs (DFA) and the Department of Justice (DOJ), has steadfastly maintained that the RP-US Extradition Treaty and P.D. No. 1069 do not grant the private respondent a right to notice and hearing during the evaluation stage of an extradition process.[9] This understanding of the treaty is shared by the US government, the other party to the treaty.[10] This interpretation by the two governments cannot be given scant significance. It will be presumptuous for the Court to assume that both governments did not understand the terms of the treaty they concluded. chanroblesvirtuallawlibrary Yet, this is not all. Other countries with similar extradition treaties with the Philippines have expressed the same interpretation adopted by the Philippine and US governments. Canadian[11] and Hongkong[12] authorities, thru appropriate note verbales communicated to our Department of Foreign Affairs, stated in unequivocal language that it is not an international practice to afford a potential extraditee with a copy of the extradition papers during the evaluation stage of the extradition

process. We cannot disregard such a convergence of views unless it is manifestly erroneous. chanroblesvirtuallawlibrary Fourth. Private respondent, however, peddles the postulate that he must be afforded the right to notice and hearing as required by our Constitution. He buttresses his position by likening an extradition proceeding to a criminal proceeding and the evaluation stage to a preliminary investigation. chanroblesvirtuallawlibrary We are not persuaded. An extradition proceeding is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused.[13] His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by one whose extradition papers are still undergoing evaluation.[14] As held by the US Supreme Court in United States v. Galanis: chanroblesvirtuallawlibrary "An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty."[15] chanroblesvirtuallawlibrary There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial.[16] In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards.[17] In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction[18] while a fugitive may be ordered extradited "upon showing of the existence of a prima facie case."[19] Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him.[20] The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nation's foreign relations before making the ultimate decision to extradite.[21] chanroblesvirtuallawlibrary As an extradition proceeding is not criminal in character and the evaluation stage in an extradition proceeding is not akin to a preliminary investigation, the due process safeguards in the latter do not necessarily apply to the former. This we hold for the procedural due process required by a given set of circumstances "must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action."[22] The concept of due process is flexible for "not all situations calling for procedural safeguards call for the same kind of procedure."[23] chanroblesvirtuallawlibrary Fifth. Private respondent would also impress upon the Court the urgency of his right to notice and hearing considering the alleged threat to his liberty "which may be more priceless than life."[24] The supposed threat to private respondents liberty is perceived to come from several provisions of the RP-

US Extradition Treaty and P.D. No. 1069 which allow provisional arrest and temporary detention. chanroblesvirtuallawlibrary We first deal with provisional arrest. The RP-US Extradition Treaty provides as follows: chanroblesvirtuallawlibrary "PROVISIONAL ARRESTchanroblesvirtuallawlibrary 1. In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice.chanroblesvirtuallawlibrary 2. The application for provisional arrest shall contain:chanroblesvirtuallawlibrary a) a description of the person sought;chanroblesvirtuallawlibrary b) the location of the person sought, if known;chanroblesvirtuallawlibrary c) a brief statement of the facts of the case, including, if possible, the time and location of the offense;chanroblesvirtuallawlibrary d) a description of the laws violated;chanroblesvirtuallawlibrary e) a statement of the existence of a warrant of arrest or finding of guilt or judgment of conviction against the person sought; andchanroblesvirtuallawlibrary f) a statement that a request for extradition for the person sought will follow.chanroblesvirtuallawlibrary 3. The Requesting State shall be notified without delay of the disposition of its application and the reasons for any denial.chanroblesvirtuallawlibrary 4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents required in Article 7." (emphasis supplied)chanroblesvirtuallawlibrary In relation to the above, Section 20 of P.D. No. 1069 provides: chanroblesvirtuallawlibrary "Sec. 20. Provisional Arrest.- (a) In case of urgency, the requesting state may, pursuant to the relevant treaty or convention and while the same remains in force, request for the provisional arrest of the accused, pending receipt of the request for extradition made in accordance with Section 4 of this Decree.chanroblesvirtuallawlibrary (b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation, Manila, either through the diplomatic channels or direct by post or telegraph.chanroblesvirtuallawlibrary

(c) The Director of the National Bureau of Investigation or any official acting on his behalf shall upon receipt of the request immediately secure a warrant for the provisional arrest of the accused from the presiding judge of the Court of First Instance of the province or city having jurisdiction of the place, who shall issue the warrant for the provisional arrest of the accused. The Director of the National Bureau of Investigation through the Secretary of Foreign Affairs shall inform the requesting state of the result of its request.chanroblesvirtuallawlibrary (d) If within a period of 20 days after the provisional arrest the Secretary of Foreign Affairs has not received the request for extradition and the documents mentioned in Section 4 of this Decree, the accused shall be released from custody." (emphasis supplied)chanroblesvirtuallawlibrary Both the RP-US Extradition Treaty and P.D. No. 1069 clearly provide that private respondent may be provisionally arrested only pending receipt of the request for extradition. Our DFA has long received the extradition request from the United States and has turned it over to the DOJ. It is undisputed that until today, the United States has not requested for private respondents provisional arrest. Therefore, the threat to private respondents liberty has passed. It is more imagined than real.chanroblesvirtuallawlibrary Nor can the threat to private respondents liberty come from Section 6 of P.D. No. 1069, which provides: chanroblesvirtuallawlibrary "Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the immediate arrest of the accused which may be served anywhere within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. . . chanroblesvirtuallawlibrary (2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case." (emphasis supplied)chanroblesvirtuallawlibrary It is evident from the above provision that a warrant of arrest for the temporary detention of the accused pending the extradition hearing may only be issued by the presiding judge of the extradition court upon filing of the petition for extradition. As the extradition process is still in the evaluation stage of pertinent documents and there is no certainty that a petition for extradition will be filed in the appropriate extradition court, the threat to private respondents liberty is merely hypothetical.chanroblesvirtuallawlibrary Sixth. To be sure, private respondents plea for due process deserves serious consideration involving as it does his primordial right to liberty. His plea to due process, however, collides with important state interests which cannot also be ignored for they serve the interest of the greater majority. The clash of rights demands a delicate balancing of interests approach which is a "fundamental postulate of constitutional law."[25] The approach requires that we "take conscious and detailed

consideration of the interplay of interests observable in a given situation or type of situation."[26] These interests usually consist in the exercise by an individual of his basic freedoms on the one hand, and the governments promotion of fundamental public interest or policy objectives on the other.[27] chanroblesvirtuallawlibrary In the case at bar, on one end of the balancing pole is the private respondents claim to due process predicated on Section 1, Article III of the Constitution, which provides that "No person shall be deprived of life, liberty, or property without due process of law . . ." Without a bubble of doubt, procedural due process of law lies at the foundation of a civilized society which accords paramount importance to justice and fairness. It has to be accorded the weight it deserves. chanroblesvirtuallawlibrary This brings us to the other end of the balancing pole. Petitioner avers that the Court should give more weight to our national commitment under the RP-US Extradition Treaty to expedite the extradition to the United States of persons charged with violation of some of its laws. Petitioner also emphasizes the need to defer to the judgment of the Executive on matters relating to foreign affairs in order not to weaken if not violate the principle of separation of powers. chanroblesvirtuallawlibrary Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the nature of the right being claimed by the private respondent is nebulous and the degree of prejudice he will allegedly suffer is weak, we accord greater weight to the interests espoused by the government thru the petitioner Secretary of Justice. In Angara v. Electoral Commission, we held that the "Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government."[28] Under our constitutional scheme, executive power is vested in the President of the Philippines.[29] Executive power includes, among others, the power to contract or guarantee foreign loans and the power to enter into treaties or international agreements.[30] The task of safeguarding that these treaties are duly honored devolves upon the executive department which has the competence and authority to so act in the international arena.[31] It is traditionally held that the President has power and even supremacy over the countrys foreign relations.[32] The executive department is aptly accorded deference on matters of foreign relations considering the Presidents most comprehensive and most confidential information about the international scene of which he is regularly briefed by our diplomatic and consular officials. His access to ultra-sensitive military intelligence data is also unlimited.[33] The deference we give to the executive department is dictated by the principle of separation of powers. This principle is one of the cornerstones of our democratic government. It cannot be eroded without endangering our government. chanroblesvirtuallawlibrary The Philippines also has a national interest to help in suppressing crimes and one way to do it is to facilitate the extradition of persons covered by treaties duly entered by our government. More and more, crimes are becoming the concern of one world. Laws involving crimes and crime prevention are undergoing universalization. One manifest purpose of this trend towards globalization is to deny easy refuge to a criminal whose activities threaten the peace and progress of civilized countries. It is to the

great interest of the Philippines to be part of this irreversible movement in light of its vulnerability to crimes, especially transnational crimes. chanroblesvirtuallawlibrary In tilting the balance in favor of the interests of the State, the Court stresses that it is not ruling that the private respondent has no right to due process at all throughout the length and breadth of the extrajudicial proceedings. Procedural due process requires a determination of what process is due, when it is due, and the degree of what is due. Stated otherwise, a prior determination should be made as to whether procedural protections are at all due and when they are due, which in turn depends on the extent to which an individual will be "condemned to suffer grievous loss."[34] We have explained why an extraditee has no right to notice and hearing during the evaluation stage of the extradition process. As aforesaid, P.D. No. 1069 which implements the RP-US Extradition Treaty affords an extraditee sufficient opportunity to meet the evidence against him once the petition is filed in court. The time for the extraditee to know the basis of the request for his extradition is merely moved to the filing in court of the formal petition for extradition. The extraditee's right to know is momentarily withheld during the evaluation stage of the extradition process to accommodate the more compelling interest of the State to prevent escape of potential extraditees which can be precipitated by premature information of the basis of the request for his extradition. No less compelling at that stage of the extradition proceedings is the need to be more deferential to the judgment of a coequal branch of the government, the Executive, which has been endowed by our Constitution with greater power over matters involving our foreign relations. Needless to state, this balance of interests is not a static but a moving balance which can be adjusted as the extradition process moves from the administrative stage to the judicial stage and to the execution stage depending on factors that will come into play. In sum, we rule that the temporary hold on private respondent's privilege of notice and hearing is a soft restraint on his right to due process which will not deprive him of fundamental fairness should he decide to resist the request for his extradition to the United States. There is no denial of due process as long as fundamental fairness is assured a party. chanroblesvirtuallawlibrary We end where we began. A myopic interpretation of the due process clause would not suffice to resolve the conflicting rights in the case at bar. With the global village shrinking at a rapid pace, propelled as it is by technological leaps in transportation and communication, we need to push further back our horizons and work with the rest of the civilized nations and move closer to the universal goals of "peace, equality, justice, freedom, cooperation and amity with all nations."[35] In the end, it is the individual who will reap the harvest of peace and prosperity from these efforts. chanroblesvirtuallawlibrary WHEREFORE, the Urgent Motion for Reconsideration is GRANTED. The Decision in the case at bar promulgated on January18, 2000 is REVERSED. The assailed Order issued by the public respondent judge on August 9, 1999 is SET ASIDE. The temporary restraining order issued by this Court on August 17, 1999 is made PERMANENT. The Regional Trial Court of Manila, Branch 25 is enjoined from conducting further proceedings in Civil Case No. 99-94684. chanroblesvirtuallawlibrary SO ORDERED. chanroblesvirtuallawlibrary

Republic of the Philipppines SUPREME COURT Manila FIRST DIVISION [G.R. No. 119712. January 29, 1999] DEVELOPMENT BANK OF THE PHILIPPINES and ASSET PRIVATIZATION TRUST, petitioners, vs. COURT OF APPEALS and CONTINENTAL CEMENT CORPORATION, Respondents. DECISION MARTINEZ, J.: chanroblesvirtualawlibrary This petition for review on certiorari assails the decision[1] rendered by the Court of Appeals dated March 28, 1995 in CA-G.R. CV No. 42596 affirming the decision of the Regional Trial Court-Branch 9 of Malolos, Bulacan dated October 9, 1992 and adopting in toto the orders rendered by the same trial court dated August 25 and December 14, 1992. chanroblesvirtualawlibrary On November 18, 1985, the Development Bank of the Philippines (DBP), a government owned and controlled corporation, filed with the Office of the Sheriff of Malolos an application for extra-judicial foreclosure of real and personal properties situated at San Jose del Monte and Norzagaray, Bulacan involving several real and/or chattel mortgages executed by Continental Cement Corporation (CCC), a corporation organized and existing under Philipine laws, engaged mainly in the manufacture of cement, in favor of DBP on August 20, 1968; September 4, 1968; May 7, 1969; September 19, 1969; October 24, 1969 and November 13, 1969. chanroblesvirtualawlibrary On December 11, 1985, Continental Cement filed a complaint with the Regional Trial Court of Malolos, Bulacan. The suit principally sought to enjoin the then defendants DBP and the Sheriff of Malolos, Bulacan from commencing the foreclosure proceedings on CCCs mortgages which were executed in favor of DBP to secure various loans obtained by CCC. In addition, CCC also prayed that a new term for its loan obligation be established, and that the court declare the interest escalation clause contained in DBPs promissory notes as null and void. chanroblesvirtualawlibrary A temporary restraining order (TRO) was issued and subsequently a Writ of Preliminary Injunction was likewise issued on January 17, 1986, despite opposition thereto by DBP. chanroblesvirtualawlibrary Sometime in December 1986, Proclamation No. 50[2] was promulgated by then President Corazon C. Aquino pursuant to Administrative Order No. 14. The proclamation established the privatization program of the National Government and created the Committee on Privatization and herein petitioner ASSET PRIVATIZATION TRUST (APT) as the privatization arm for the government. chanroblesvirtualawlibrary

Several non-performing assets of the government financial institutions, including DBP, were transferred to the National Government. The transfer was implemented through a Deed of Transfer executed on February 27, 1987 between DBP and the National Government, which in turn, designated petitioner APT to act as its trustee over the assets. Among the non-performing assets identified and transferred to the APT was the account of CCC. A Trust Agreement was thereafter executed between the National Government and APT, wherein the latter was to take title to and possession of liabilities and non-performing assets. chanroblesvirtualawlibrary On September 18, 1987, DBP filed a motion to dismiss contending (1) that the case has become moot and academic because CCC could no longer secure reliefs from DBP as a result of the transfer of DBPs claim against CCC to APT; and (2) that the court lost jurisdiction over the subject matter considering that Section 31 of Proc. No. 50 prohibits the issuance of any restraining order or injunction against APT in connection with the acquisition, sale, or disposition of assets transferred to it. However, the motion of DBP was denied by the trial court on January 27, 1988, and APT was eventually allowed to join the defendant DBP pursuant to Proclamation No. 50, as amended. chanroblesvirtualawlibrary In July 1989, the accounting firm of J. C. Laya[3] was designated by the lower court as Commissioner to resolve the main issue in the case, that is, the determination of the actual arrearages of respondent CCC to petitioner APT and DBP arising from loan accommodations obtained by CCC from DBP. chanroblesvirtualawlibrary To aid the Commissioner and to expedite his task of determining the actual indebtedness of CCC, both CCC and DBP provided the representatives of the Commissioner with the pertinent data and documents which were within their custody and possession. Among the documents provided was a copy of the Memorandum of Agreement[4] executed between CCC and DBP which pegged CCCs total indebtedness to DBP at P133,717,286.95 as of August 31, 1979. chanroblesvirtualawlibrary The Commissioner was unable to accomplish his assigned task within the period set by the court. He was initially given an extension of sixty (60) days. This proved to be insufficient thus he was granted another forty-five (45) days from December 18, 1989. chanroblesvirtualawlibrary Despite several extensions given to the Commissioner to complete his report, he failed to do so. This prompted the trial court to issue an Order dated April 23, 1990 directing Atty. Jose Leynes[5] to explain why he should not be cited for contempt for his unexplained omission to perform and accomplish his duties as the court appointed Commissioner. This was followed by another Order dated July 2, 1990 citing Atty. Leynes in contempt of court and ordered his imprisonment for his noncompliance with the April 23, 1990 order. chanroblesvirtualawlibrary To avoid the consequences of the contempt order, Atty. Leynes submitted a draft report on July 11, 1990 entitled Summary of Initial Findings. The contempt order was subsequently lifted by the trial court on August 20, 1990. chanroblesvirtualawlibrary After several months of work had passed, the Commissioner, this time known as Laya Manabat Salgado & Co., submitted to the lower court its report entitled Commissioners Report on Loan

Proceeds and Payments dated January 11, 1991. The findings of the Commissioner as cited by the Court of Appeals in its decision were as follows: chanroblesvirtualawlibrary It bears emphasis that the report is confined to a determination of CCCs indebtedness to DBP in relation only to four (4) straight peso loans, namely, a 12% ten-year loan of P3,867,291 signed on August 20, 1968; a 10% ten-year loan of P7,784,000 signed on September 19, 1969; a 10% ten-year loan signed on October 23, 1969; and a P5.5. Million loan not covered by any promissory note but released to the extent of P1.0 Million in March 1972, and two (2) guaranteed foreign exchange loans consisting of US$2,000,000 contracted on September 4, 1968 by CCC but guaranteed by DBP in favor of Somex Ltd. and DM11,233,115 (German Deutsche Marks) in favor of consortium of West German Manufacturers headed by Klockner-Humboldt-Deutz, A.G. dated May 9, 1969 (Report, p. 3). The Report excludes the implications of, firstly, an industrial fund loan extended by DBP for CCCs acquisition of coal conversion equipment appearing in DBPs books of accounts as US$ 2,558,347 and, secondly, DBPs advances for insurance, management fees and miscellaneous charges in the total amount of P4,436,807 (Report, pp. 8-9, pars. 4.8, 4.9). x x x[6] chanroblesvirtualawlibrary As a result of the report, the parties filed their respective comments and objections thereto. During the trial, former Central Bank Governor Jaime C. Laya and a representative of the Commissioner were called upon to testify. The parties also had the opportunity to cross-examine the witnesses on matters touched upon in the report as well as those disregarded by the Commissioner in its report. chanroblesvirtualawlibrary After having cross-examined the representative of the Commissioner, the parties were then allowed to submit their respective Position Papers. Contained in their respective position papers was their own computation of the outstanding liabilities of CCC. CCCs computation of its exact indebtedness to DBP as of December 1990, covering the straight peso loans and foreign guarantees stood at P43,601,192.73. The Commissioner reported that the indebtedness amounted to P61,698,849.00 while DBP and APT computed CCCs total indebtedness in the sum of P2,656,573,716.11.[7] chanroblesvirtualawlibrary On July 23, 1992, a hearing was scheduled for the sole purpose of examining three (3) of CCCs witnesses, namely, Gregorio Lim, Urbano Cruz and Jessica Alonzo. The cross-examination was to be conducted by APT as DBP had previously conducted its own cross-examination. The counsel for CCC failed to appear as he was allegedly ill. On that same date, the court issued an order resetting the crossexamination for CCCs witnesses on August 24, 25 and 26, 1992. Again, the counsel for APT was not able to attend due to an alleged serious illness (Dengue Hemorrhagic Fever). Also absent during the hearing was DBPs counsel and DBP/APTs lone witness, Mr. Jaime V. Cruz. chanroblesvirtualawlibrary On August 25, 1992, the trial court issued an order which considered the case submitted for decision. The final paragraph of the order reads as follows: chanroblesvirtualawlibrary In the light of the foregoing developments, and conformably with the agreement entered into much earlier by the contending parties to the effect that after the affiants to the position papers shall have

been cross-examined, the parties shall dispense with the presentation of further evidence, the case at bar is considered henceforth submitted for adjudication on the merits.[8] chanroblesvirtualawlibrary It is claimed by petitioner APT that when the above-mentioned order was issued, APT did not yet have the opportunity to cross-examine the affiants of respondent CCC; nor did it have the chance to present any of their affiants to support their allegations as contained in their Joint Position Papers. chanroblesvirtualawlibrary On September 18, 1992, APT filed a Motion for Reconsideration. In an order dated October 13, 1992, the trial court declared that such motion became moot and academic by reason of the decision rendered on October 5, 1992. chanroblesvirtualawlibrary On that earlier date, the lower court rendered the assailed decision, the dispositive portion of which is as follows: chanroblesvirtualawlibrary WHEREFORE, premises considered, judgment is hereby rendered:chanroblesvirtualawlibrary 1. fixing the total indebtedness of plaintiff Continental Cement Corporation in favor of defendant Development Bank of the Philippines on the straight peso loans and foreign guarantees at P61,498,849.00 as of December 31, 1990;chanroblesvirtualawlibrary 2. fixing the indebtedness of plaintiff Continental Cement Corporation in favor of defendant Development Bank of the Philippines on the coal conversion loan at US$977,000.00, or P7,347,890.00 which is its equivalent in pesos at the official rate of exchange prevailing in August 1979;chanroblesvirtualawlibrary 3. ordering the plaintiff to pay unto either of the defendants DBP or APT, within six (6) months from the finality of this judgment, the aforementioned amount of P61,498,849.00 with interest thereon at 10% per annum from January 1, 1991 until the same shall have been fully paid and the aforementioned amount of US$997,000.00/P7,347,890.00 without interest thereon;chanroblesvirtualawlibrary 4. declaring premature and without legal basis the application for extrajudicial foreclosure (Annex A of the Complaint) filed on November 18, 1985 by defendant Development Bank of the Philippines with the office of the defendant Sheriff of Malolos, Bulacan;chanroblesvirtualawlibrary 5. making permanent the writ of preliminary injunction issued by this Court on January 17, 1986 in the case at bar enjoining proceedings on the aforementioned application for extrajudicial foreclosure, without prejudice to such rights (including the institution of eventual foreclosure proceedings) as the defendants may opt to pursue against the plaintiff in the event that the directive specified in the preceding paragraph hereof shall not have been complied with; andchanroblesvirtualawlibrary 6. dismissing the plaintiffs claim for unspecified attorneys fees and expenses of litigation.chanroblesvirtualawlibrary No pronouncement as to costs.chanroblesvirtualawlibrary SO ORDERED.[9] chanroblesvirtualawlibrary

After having learned of the decision of the trial court, APT and DBP filed their respective Omnibus Motions. APT, in its Omnibus Motion dated October 27, 1992, prayed for the issuance of the following orders by the trial court: chanroblesvirtualawlibrary 1) vacating and nullifying its Decision dated October 5, 1992;chanroblesvirtualawlibrary 2) granting APT an opportunity to cross-examine plaintiffs witness;chanroblesvirtualawlibrary 3) allowing DBP and APT to present their witnesses and evidence;chanroblesvirtualawlibrary 4) after trial, requiring the parties to submit their respective Memoranda.[10] chanroblesvirtualawlibrary The trial court, on December 14, 1992, issued an Order denying the separate Omnibus Motions of APT and DBP. Both APT and DBP appealed the trial courts decision dated October 5, 1992 and orders dated August 25, 1992 and December 14, 1992. chanroblesvirtualawlibrary On June 7, 1993, APT and DBP filed with the Court of Appeals a petition for certiorari and prohibition with prayer for an ex-parte issuance of a restraining order and a writ of preliminary injunction docketed as CA-G.R. SP No. 32853. However, on January 31, 1994, the Court of Appeals dismissed the petition for lack of merit. chanroblesvirtualawlibrary Thus, on March 28, 1995, the Court of Appeals, in CA-G.R. CV No. 42596 rendered the assailed decision, the dispositive portion of which reads as follows: chanroblesvirtualawlibrary WHEREFORE, premises considered, judgment is hereby rendered AFFIRMING the Decision dated October 5, 1992 and the orders dated August 25 and December 14, 1992 in toto. The order dated January 22, 1993 is hereby annulled and set aside insofar as it directs the partial release of collaterals by defendants-appellants DBP and APT.[11] chanroblesvirtualawlibrary In the instant Petition for Review, APT assigns the following errors committed by the appellate court: Ichanroblesvirtualawlibrary THE COURT OF APPEALS IN AFFIRMING THE LOWER COURTS DECISION, DISREGARDED THE PRINCIPLES EMBODIED IN THE DUE PROCESS CLAUSE OF THE CONSTITUTION, THUS: Achanroblesvirtualawlibrary THE COURT OF APPEALS ERRED IN FINDING THAT PETITIONER HAS WAIVED ITS RIGHT TO CROSS-EXAMINE RESPONDENTS WITNESS IIchanroblesvirtualawlibrary THE COURT OF APPEALS ERRED WHEN IT AFFIRMED THE TRIAL COURTS DECISION ADOPTING IN TOTO THE REPORT OF THE COMMISSIONER

Achanroblesvirtualawlibrary THE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL COURTS DECISION THAT THE MEMORANDUM OF AGREEMENT IS UNENFORCEABLE Bchanroblesvirtualawlibrary THE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL COURTS DECISION LIMITING THE LIABILITY OF RESPONDENT IN THE AMOUNT OF P61,498,849.00 AS OF DECEMBER 31, 1990 INSTEAD OF P2,656,573,716.11 IIIchanroblesvirtualawlibrary THE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL COURTS ISSUANCE OF A TEMPORARY RESTRAINING ORDER AND WRITS OF PRELIMINARY AND PERMANENT INJUNCTION.chanroblesvirtualawlibrary Anent the first assigned error, petitioner APT insists that the lower court as well as the Court of Appeals disregarded the principles of the due process clause embodied in the Constitution when it found APT to have waived its right to cross-examine respondents witnesses. On the other hand, respondent CCC counters that the findings of the lower court may be attributed to the fault of APTs counsel. CCC alleges that the counsel for APT often absented himself on scheduled hearing dates, resulting in the failure to cross-examine the witnesses of respondent CCC. chanroblesvirtualawlibrary The insistence of the petitioner is without basis. chanroblesvirtualawlibrary Long ingrained in our jurisprudence is the principle that there can be no denial of due process where a party had the opportunity to participate in the proceedings but did not do so.[12] chanroblesvirtualawlibrary As shown from the records, the counsel for APT was absent on several occasions, specifically on April 7, May 5, June 2, June 16, August 24 and 25, 1992. Several reasons were raised by APTs counsel to justify his absence, such as withdrawal of previous counsel, unreadiness to conduct the crossexaminations, and serious illness. chanroblesvirtualawlibrary These flimsy excuses do not warrant consideration from this Court. The withdrawal of APTs previous counsel in the thick of the proceedings would be a reasonable ground to seek postponement of the hearing. However, such reason necessitates a duty, nay an obligation, on the part of the new counsel to prepare himself for the next scheduled hearing. The excuse that it was due to the former counsels failure to turn over the records of the case to APT, shows the negligence of the new counsel to actively recover the records of the case. Mere demands are not sufficient. Counsel should have taken adequate steps to fully protect the interest of his client, rather than pass the blame on the previous counsel. chanroblesvirtualawlibrary A motion to postpone trial on the ground that counsel is unprepared for trial demonstrates indifference and disregard of a clients interest. A new counsel who appears in a case in midstream is presumed and

obliged to acquaint himself with all the antecedent processes and proceedings that have transpired prior to his takeover.[13] chanroblesvirtualawlibrary As regards the serious illness suffered by counsel during the trial dates of August 24 and 25, 1992, we take note that Dengue Hemorrhagic Fever, if not treated at its early stage, could cause serious illness, sometimes even death. This Court is not unmindful of the fact that counsels absence was due to this deadly disease. What baffles this Court is the reason offered by counsel that although two other APT lawyers were mentioned in the pleadings, only one was actively involved in the handling of the case.[14] Counsel further adds that he could not have possibly appraised the two other lawyers to appear during the scheduled hearing in his absence. chanroblesvirtualawlibrary We cannot understand why it would be difficult for counsel to appraise his two other collaborating counsels. Counsel himself readily admits that of the two, only one is actively handling the case. It would take a mere phone call to inform his co-counsels than he would be unable to attend rather than be declared absent during trial. Yet, counsel failed to do so. chanroblesvirtualawlibrary In view of the foregoing, we find the Court of Appeals did not commit error, when it declared that petitioner waived its right to cross-examine the respondents witnesses. The due process requirement is satisfied where the parties are given the opportunity to submit position papers,[15] as in this case. Both parties, CCC and DBP/APT, were given opportunity to submit their respective position papers after the Commissioner rendered his report. Contained in their position papers were their respective comments and objections to the said report. Furthermore, the parties were also given the chance to cross-examine the Commissioner and his representative. They were likewise granted opportunity to cross-examine the witnesses of the other party, however, like in APTs case, they were deemed to have waived their right, as previously discussed. chanroblesvirtualawlibrary The essence of due process is that a party be afforded a reasonable opportunity to be heard and to support any evidence he may have in support of his defense.[16] What the law prohibits is absolute absence of the opportunity to be heard, hence, a party cannot feign denial of due process when he had been afforded the opportunity to present his side.[17] chanroblesvirtualawlibrary As to the second assigned error, petitioner avers that the Court of Appeals erred when it affirmed the trial courts decision adopting in toto the report of the Commissioner and the decision of the trial court declaring the Memorandum of Agreement as unenforceable. chanroblesvirtualawlibrary The above-mentioned issues involve matters which are factual in nature. As a general rule, findings of fact of the Court of Appeals are binding and conclusive upon this Court, and we will not normally disturb such factual findings unless the findings of the court are palpably unsupported by the evidence on record or unless the judgment itself is based on a misapprehension of facts.[18] chanroblesvirtualawlibrary In the case at bar, we find no such error that would warrant a reversal of the assailed decision. As to the matter of the memorandum of agreement, we concur with the decision of the Court of Appeals. The Memorandum of Agreement itself stated that failure of Continental to meet this deadline shall be

construed as its objection to this new restructuring scheme.[19] Moreover, CCC did not execute nor submit all the documents needed to make said agreement effective. The fact that CCC did not comply with the requirements of the Memorandum of Agreement at the expiration of the period set by DBP, only shows CCCs non-conformity to the agreement. chanroblesvirtualawlibrary Since CCC did not express its conformity to the agreement, it was only proper for the Commissioner to consider the amount of indebtedness of CCC based on actual loan releases. The Commissioner did consider the Memorandum of Agreement as a source document, however, no one was able to satisfactorily explain how the figure was arrived at. It must be emphasized that the Commissioners report was limited in relation to four (4) straight peso loans and two (2) guaranteed foreign exchange loans. It is, therefore, erroneous for APT and DBP to conclude that CCCs entire outstanding obligations stood at P2,656,573,716.11. chanroblesvirtualawlibrary As regards the determination of the Commissioner as to the actual indebtedness of CCC, we uphold the ruling of the respondent court. The very reason why the Commissioner was appointed as such was due to the complex nature of the issues involved in the case which required the technical know-how and expertise possessed by the Commissioner. The records also bear the fact that said Commissioner was chosen by both parties. chanroblesvirtualawlibrary As we have previously ruled in Quebral vs. CA[20] that factual findings of the Court of Appeals normally are not reviewable by this Court under Rule 45 of the Rules of Court, except when the findings of the appellate court are at variance with those of the trial court. Since the trial court and the Court of Appeals were in unison with the findings of the Commissioner, this Court is of the opinion that it finds no compelling reason to reverse the same. chanroblesvirtualawlibrary Lastly, petitioner APT argues that the Court of Appeals erred in affirming the trial courts issuance of a temporary restraining order and a writ of preliminary and permanent injunction against it (APT), despite the express provisions of Proclamation No. 50. On the other hand, CCC asseverates that since APT was a mere transferee pendente lite, it was bound by the preliminary injunction previously issued against DBP. chanroblesvirtualawlibrary We find merit in the assigned error of petitioner APT. chanroblesvirtualawlibrary It must be recalled that the trial court did in fact issue a Writ of Preliminary Injunction against petitioner APT. The particular section which contains the non-injunction rule is quoted hereunder: chanroblesvirtualawlibrary Courts may not substitute their judgment for that of APT, nor block, by an injunction the discharge of its function and the implementation of its decision in connection with the acquisition, sale, or disposition of assets transferred to it.[21] chanroblesvirtualawlibrary Furthermore, we reiterate the ruling held in that case that Proclamation No. 50 does not infringe any provision of the Constitution. Thus chanroblesvirtualawlibrary

The President, in the exercise of his legislative power under the Freedom Constitution, issued Proclamation No. 50-A prohibiting the courts from issuing restraining orders and writ of injunction against the APT and the purchasers of any asset sold by it, to prevent courts from interfering in the discharge, by this instrumentality of the executive branch of the Government, of its task of carrying out `the expeditious disposition and privatization of certain government corporations and/or the assets thereof (Proc. No. 50), absent any grave abuse of discretion amounting to excess or lack of jurisdiction on its part. This proclamation, not being inconsistent with the Constitution and not having been repealed or revoked by Congress, has remained operative (Section 3, Art. XVIII, 1987 Constitution).[22] chanroblesvirtualawlibrary The records of the case at bar does not disclose any grave abuse of discretion committed by petitioner APT amounting to excess or lack of jurisdiction in its effort to take possession of the assets transferred to it by DBP. We are of the opinion that petitioners simply availed of judicial processes to recover the transferred assets formerly owned by DBP. We hold respondent Court of Appeals liable of committing the assigned error. chanroblesvirtualawlibrary In sum, petitioner APT was not denied its right to due process when it failed to cross-examine respondents witnesses as this was due to its own counsels failure and negligence. A party cannot feign denial of due process when he had the opportunity to present his side.[23] A careful review of the records reveal that DBP had the opportunity to exhaustively cross-examine respondents witnesses. Furthermore, as transferee pendente lite, APT merely stepped into the shoes of DBP. chanroblesvirtualawlibrary As regards the indebtedness of CCC, petitioners APT/DBP must be reminded that all is not lost when the Commissioner ruled that the outstanding loans amounted to P61,498,849.00 only. As manifested by the Commissioner, the report limited itself to four (4) straight peso loans and two (2) guaranteed foreign exchange loans. This was due to the insufficiency of supporting documents submitted by both parties. We wish to state that the affirmation by this Court of the rulings of the Court of Appeals as to the indebtedness of CCC, does not in any way prejudice APT/DBPs right to recover from CCC, provided they are fully able to substantiate their claim. chanroblesvirtualawlibrary WHEREFORE, the petition is hereby DENIED and the assailed decision is hereby AFFIRMED but with modification as follows: chanroblesvirtualawlibrary The writ of preliminary injunction issued on January 17, 1986, and the writ of permanent injunction issued on October 5, 1992 are hereby declared NULL AND VOID pursuant to Section 31, Proclamation No. 50. chanroblesvirtualawlibrary SO ORDERED. chanroblesvirtualawlibrary Davide, Jr., C.J. (Chairman), Melo, Kapunan, and Pardo, JJ., concur. Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION [G.R. No. 98310. October 24, 1996] MATUGUINA INTEGRATED WOOD PRODUCTS, INC., Petitioner, vs. The HON. COURT OF APPEALS, DAVAO ENTERPRISES CORPORATION, The HON. MINISTER, (NOW SECRETARY) of NATURAL RESOURCES AND PHILLIP CO, Respondents. . DECISION TORRES, JR., J.:chanroblesvirtualawlibrary Matuguina Integrated Wood Products Inc. (MIWPI, for brevity) filed this action for prohibition, Damages and Injunction, in order to prevent the respondent Minister (now Secretary) of Natural Resources from enforcing its Order of Execution against it, for liability arising from an alleged encroachment of the petitioner over the timber concession of respondent DAVENCOR located in Mati, Davao Oriental.chanroblesvirtualawlibrary The Regional Trial Court, Branch 17, Davao City, ruled in favor of the petitioner, but on appeal, was reversed by the respondent Court of Appeals in its decision dated February 25, 1991, which found MIWPI, as an alter ego of Milagros Matuguina and/or Matuguina Logging enterprises (MLE, to be liable to DAVENCOR for illegal encroachment.chanroblesvirtualawlibrary The following are the antecedent facts:chanroblesvirtualawlibrary On June 28, 1973, the Acting Director of the Bureau of Forest Development issued Provisional Timber License (PTL) No. 30, covering an area of 5,400 hectares to Ms. Milagros Matuguina who was then doing business under the name of MLE, a sole proprietorship venture. A portion, covering 1,900 hectares, of the said area was located within the territorial boundary of Gov. Generoso in Mati, Davao Oriental, and adjoined the timber concession of Davao Enterprises Corporation (DAVENCOR), the private respondent in this case.chanroblesvirtualawlibrary On July 10, 1974, petitioner Matuguina Integrated Wood Products, Inc. (MIWPI), was incorporated, having an authorized capital stock of Ten Million Pesos (P10,000,000.00).[1] The incorporators/stockholders of MIWPI, and their stock subscriptions were as follows:chanroblesvirtualawlibrary Name No. Of Shares Subscribed Amount of Capitalchanroblesvirtualawlibrary Stock Subscribedchanroblesvirtualawlibrary 1. Henry Wee 1,160,000 1,160,000.00chanroblesvirtualawlibrary 2. Ma. Milagros Matuguina 400,000 400,000.00chanroblesvirtualawlibrary 3. Alejandro Chua Chun 200,000 200,000.00chanroblesvirtualawlibrary

4. Bernadita Chua 120,000 120,000.00chanroblesvirtualawlibrary 5. Domingo Herrera 40,000 40,000.00chanroblesvirtualawlibrary 6. Manuel Hernaez 40,000 40,000.00chanroblesvirtualawlibrary 7. Luis Valderama 40,000 40,000.00chanroblesvirtualawlibrary ----------------- ------------------chanroblesvirtualawlibrary 2,000,000 2,000,000.00chanroblesvirtualawlibrary =========== ===========chanroblesvirtualawlibrary Milagros Matuguina became the majority stockholder of MIWPI on September 24, 1974, when the latters Board of Directors approved by Resolution the transfer of 1,000,000 shares from Henry Wee to Milagros Matuguina, thus giving her seventy percent (70%) stock ownership of MIWPI.chanroblesvirtualawlibrary In an undated letter[2] to the Director of Forest Development (BFD) on November 26, 1974, Milagros Matuguina requested the Director for a change of name and transfer of management of PTL No. 30, from a single proprietorship under her name, to that of MIWPI.chanroblesvirtualawlibrary This request was favorably endorsed on December 2, 1974[3] by the BFDs Acting Director, Jose Viado to respondent Secretary of Natural Resources, who approved the same on September 5, 1975.[4]chanroblesvirtualawlibrary On July 17, 1975, Milagros Matuguina and petitioner MIWPI executed a Deed of Transfer[5] transferring all of the formers rights, interests, ownership and participation in Provincial Timber License No. 30 to the latter for and in consideration of 148,000 shares of stocks in MIWPI.chanroblesvirtualawlibrary A copy of said deed was submitted to the Director of Forest Development and Petitioner MIWPI had since been acting as holder and licensee of PTL No. 30.chanroblesvirtualawlibrary On July 28, 1975, pending approval of the request to transfer the PTL to MIWPI, DAVENCOR, through its Assistant General Manager, complained to the District Forester at Mati, Davao Oriental that Milagros Matuguina/MLE had encroached into and was conducting logging operations in DAVENCORs timber concession.chanroblesvirtualawlibrary After investigation of DAVENCORs complaint, the Investigating Committee which looked into DAVENCORs complaint submitted its report to the Director, finding that MLE had encroached on the concession area of DAVENCOR. In line with this, the Director of Forest Development issued an Order[6] on July 15, 1981, finding and declaring MLE to have encroached upon, and conducted illegal logging operations within the licensed or concession area of DAVENCOR.chanroblesvirtualawlibrary

MLE appealed the Order to the Ministry of Natural Resources, which appeal was docketed as MNR CASE No. 6450. During the pendency of the appealed case with the Minister of Natural Resources, Ma. Milagros Matuguina disposed of her shares in petitioner MIWPI, thereby ceasing to be a stockholder of the petitioner of March 16, 1986.[7]chanroblesvirtualawlibrary On October 1, 1986, The Minister of Natural Resources, Hon. Ernesto M. Maceda rendered his Decision,[8] affirming the aforesaid order of the Director of Forest Development, stating thus:chanroblesvirtualawlibrary DECISIONchanroblesvirtualawlibrary "For our Resolution is the appeal by MATUGUINA LOGGING ENTERPRISES (MLR, for short) of the Order dated 15 July 1991 of the Director of Forest Development finding and declaring MLE to have encroached upon, and conducted illegal logging operations within the license or concession area of DAVAO ENTERPRISES CORPORATION. The aforesaid Order dispositively states:chanroblesvirtualawlibrary "WHEREFORE, there being a clear and convincing proof that Matuguina Conducted illegal operation within the licensed area of DAVENCOR, above named respondent is hereby ordered to pay to the complainant the equivalent value in pesos of 2,352.04 cubic meters of timber based on the market price obtaining, at the logpond of the respondent at the time of cutting, minus the cost of production, or to restitute to the complainant equal volume of 2,352.04 cubic meters of logs owned by respondent to be taken at respondents logpond. The respondent is hereby directed to comply with this Order within a period of ninety (90) days from receipt of this Order and after the lapse of the said period, no compliance has been made by the respondent, its logging operations shall ipso facto become automatically suspended until respondent shall have complied as directed.chanroblesvirtualawlibrary The Regional Director of Region II, Davao City is hereby instructed to implement this Order and to submit his compliance report within ten (10) days after the lapse of the ninety (90) days period within which the respondent is directed to comply with this order."chanroblesvirtualawlibrary And that the dispositive portion of the said decision states;chanroblesvirtualawlibrary "WHEREFORE, the Order dated 15 July 1981 of the Director of Forest Development is hereby AFFIRMED."chanroblesvirtualawlibrary When the Decision of the Minister of Natural Resources became final and executory, Philip Co and DAVENCOR requested the respondent Minister on October 30, 1986 to issue immediately a writ of execution against MLE and/or MIWPI.[9] The Order of Execution[10] was issued on January 6, 1987 by the Minister through the latters Assistant on Legal Affairs. The said Order directed the issuance of a writ of execution, not only against MLE, but likewise against MIWPI. The dispositive portion of the order provides:chanroblesvirtualawlibrary "WHEREFORE, let a Writ of Execution be issued against Matuguina Logging Enterprises and/or Matuguina Integrated Wood Products, Inc. For the satisfaction of the Decision of the Bureau of Forest

Development dated 15 July 1981, and the Order of this office dated 1 October 1986.chanroblesvirtualawlibrary SO ORDERED."chanroblesvirtualawlibrary Subsequently, a writ of execution[11] dated January 8, 1987 was issued in favor of the respondent DAVENCOR, which states:chanroblesvirtualawlibrary "The City/Provincial Sheriffchanroblesvirtualawlibrary Davao Citychanroblesvirtualawlibrary GREETINGS:chanroblesvirtualawlibrary You are hereby directed to enforce, implement and execute the Order of Execution dated 06 June 1987 of this Office in the above-entitled case against Matuguina Logging Enterprises and/or Matuguina Integrated Wood Products, Inc. its officers or any person or corporation in its behalf and conformably with the Order dated 15 July 1981 of the Director of Forest Development, stating dispositively. xxxchanroblesvirtualawlibrary You are hereby requested to submit your return to this Office within the period of sixty (60) days from your receipt hereof as to action taken hereon.chanroblesvirtualawlibrary SO ORDERED."chanroblesvirtualawlibrary On February 11, 1987, MIWPI filed the instant complaint[12] for prohibition, damages and injunction, with prayer for restraining order, which case was docketed as Civil Case No. 18,457-87 in the Regional Trial Court Davao City, Branch 17. MIWPI stated its primary cause of action, the relevant portion of which reads, viz.:chanroblesvirtualawlibrary "5. That plaintiff which has a distinct and separate personality of its own under the law, and was never a party to the case between DAVENCOR and MLE, suddenly became a party to the case after the decision became final and executory with the issuance of Annex "B" hereof for reasons known to the defendants alone:chanroblesvirtualawlibrary 6. That the issuance of Annex B hereof (the order of execution) by the defendant Minister has been made not only without or in excess of his authority but that the same was issued patently without any factual or legal basis, hence, a gross violation of plaintiffs constitutional rights under the due process clause;chanroblesvirtualawlibrary 7. That plaintiff, in the face of the order (Annex B) complained of, there being no appeal or any plain, speedy, and adequate remedy in the ordinary course of law, does not have any alternative but to ventilate the present recourse;chanroblesvirtualawlibrary 8. That defendant Minister is doing, threatens or is about to do, or is procuring or suffering to be done, some act which definitely is in violation of the plaintiffs rights respecting the subject matter of the

action, and unless said act or acts are restrained or prohibited at least during the pendency of this case, said act or acts would probably work not only injustice to plaintiff but world tend to render the judgment of this Honorable court ineffectual;chanroblesvirtualawlibrary 9. That the commission or continuance of the acts complained of during the present litigation would not only cause great and irreparable injury, but will also work injustice to the plaintiff, and would complicate, aggravate and multiply the issues in this case;chanroblesvirtualawlibrary 10. That the plaintiff is entitled to the relief demanded, and the whole or part of such relief consist in restraining the commission or continuance of the acts complained of, or in the performance of acts, either for a limited period or perpetually;chanroblesvirtualawlibrary 11. That great and irreparable injury would inevitably result to the plaintiff before the matter can be heard on notice, hence, immediate issuance of a restraining order is necessary and proper;chanroblesvirtualawlibrary 12. That the plaintiff is willing and able to file the necessary bond executed to the defendants, in an amount to be fixed by the Court, to the effect that the plaintiff will pay to the defendants all damages which they may sustain by reason of the injunction if the court should finally decide that the plaintiff was not entitled thereto."chanroblesvirtualawlibrary MIWPI, likewise alleges that in wantonly and imprudently procuring the Writ of Execution against it, which DAVENCOR and Philip Co seek to enforce a 2.5 Million Peso liability of plaintiff, the latter has been constrained to bring the present action, thereby incurring damages in the sum of P500,000.00 in concept of actual and compensatory damages, and P250,000.00 in attorneys fees, which amount petitioner now seeks to recover.chanroblesvirtualawlibrary The trial court issued a temporary restraining order the next day, February 12, 1987, restraining and/or enjoining the private respondents and the Hon. Secretary of Natural Resources from enforcing, implementing and/or carrying into effect, the decision of the respondent Secretary dated October 1, 1986, as well as the order of execution dated January 6, 1987.chanroblesvirtualawlibrary On February 17, 1987, private respondent filed a Motion to Dismiss[13] alleging that the trial court had no jurisdiction over the case under Presidential Decree No. 705, to which Motion to Dismiss, petitioner filed an Opposition[14] dated February 1987. On March 9, 1987, the trial court issued an order[15] denying private respondents Motion to Dismiss. Hence, private respondents filed their Answer[16] dated March 13, 1987 and an Amended Answer[17]chanroblesvirtualawlibrary In the latter pleading, private respondents raised the following special and affirmative defenses:chanroblesvirtualawlibrary "7. That neither Milagros Matuguina nor Matuguina Integrated Wood Products, Inc. advised defendant Davencor of the change of name, and transfer of management of PTL No. 30. From Milagros Matuguina to Matuguina Integrated Wood Products, Inc., during the pendency of MNR Case No. 6540 before the Bureau of Forest Develoment and the Ministry of Natural Resources, notwithstanding that

the lawyer of matuguina Integrated Wood Products, Inc., who was also a stockholder thereof, had appeared for Milagros Matuguina in said administrative case.chanroblesvirtualawlibrary 8. That plaintiff has acted in bad faith and is now in estoppel from questioning the Writ of Execution issued against Milagros Matuguina (now Matuguina Integrated Wood Products, Inc.) to satisfy the judgment in MNR Case No. 6540.chanroblesvirtualawlibrary 9. This Honorable Court has no jurisdiction over the nature and subject matter of this action, especially because:chanroblesvirtualawlibrary (a) The plaintiff has not exhausted administrative remedies available to it before initiating this action;chanroblesvirtualawlibrary (b) In the guise of entertaining an action for damages, this Court is being misled by the plaintiff into deciding questions properly for the Department of Natural Resources to decide exclusively in the lawful exercise of its regulatory jurisdiction;chanroblesvirtualawlibrary (c) The plaintiff is now precluded and estopped from filing this action.chanroblesvirtualawlibrary 10. The plaintiff has no cause of action against the defendants and has not stated any in its complaint, especially because:chanroblesvirtualawlibrary (a) Having failed to exhaust administrative remedies, plaintiff is without a ripe cause of action that can be pleaded before this Honorable Court;chanroblesvirtualawlibrary (b) In substance, there is no justifiable question raised under the facts and circumstances of this case.chanroblesvirtualawlibrary Meanwhile, on June 2, 1987, the trial court issued an order[18] granting the petitioners prayer for the issuance of a writ of preliminary injunction against the private respondents and the Secretary of Natural Resources, ordering them to desist, refrain and prevent from enforcing respondent Secretarys Decision dated October 1, 1986 as well as the writ of execution dated January 8, 1987.chanroblesvirtualawlibrary On May 10, 1989, the trial court rendered its Decison[19] in favor of the petitioner, disposing of the action as follows:chanroblesvirtualawlibrary "WHEREFORE, in view of the foregoing, finding the evidence of plaintiff, Matuguina Integrated Wood Products, Inc. sufficient to sustain a preponderance of evidence, showing that the order of execution dated January 6, 1987, issued by the Minister of Natural Resources, through Alexander C. Castro, Assistant Minister for Legal Affairs, included therein, plaintiff Matuguina Integrated Wood Products, Inc., despite non-inclusion of plaintiff in the decision of the then Minister of Natural Resources, dated October 1, 1986, already final and executory before the issuance of the order and execution, said order or execution is hereby declared null and void and without any legal effect.chanroblesvirtualawlibrary

As a consequence thereof, the writ of preliminary injunction issued by this court, dated June 2, 1987 is hereby made permanent.chanroblesvirtualawlibrary Moreover, as a result of the filing of this case, defendant Philip Co and Davencor Corporation, are ordered to jointly and severally pay the amount of P100,000.00 as actual and compensatory damages, along with another amount of P20,000.00 as attorneys fees and costs of this action, in favor of plaintiff Matuguina Integrated Wood Products, Inc.chanroblesvirtualawlibrary SO ORDERED."chanroblesvirtualawlibrary Private respondents appealed the trial courts decision on May 19, 1989. Their notice of appeal was approved by the trial court. The appealed case was docketed with respondent Honorable Court of Appeals as CA-G.R. SP No. 19887.chanroblesvirtualawlibrary On February 25, 1991, the respondent Court rendered its Decision,[20] reversing the lower courts pronouncement. The dispositive portion of the decision reads:chanroblesvirtualawlibrary "WHEREFORE, premises considered, the decision appealed from is reversed and set aside and the Order of Execution issued by the Minister of Natural Resources dated January 6, 1987 is affirmed. Without pronouncement as to costs.chanroblesvirtualawlibrary SO ORDERED."chanroblesvirtualawlibrary In due time, petitioner filed a motion for reconsideration.[21] Private respondents filed their opposition[22] to the same on April 2, 1991. In a Resolution[23] dated April 12, 1991, the motion was denied by the respondent Court.chanroblesvirtualawlibrary Not content with the courts pronouncement, petitioner is now before us on a Petition for Review on Certiorari,[24] alleging that the respondent court acted with grave abuse of discretion in rendering the questioned decision and its companion resolution, denying the motion for reconsideration.chanroblesvirtualawlibrary The reasons relied upon by the Petitioner in filing its petition are hereby restated: Ichanroblesvirtualawlibrary PETITIONER WAS DENIED DUE PROCESS OF LAW WHEN IT WAS MADE LIABLE BY RESPONDENT SECRETARY OF NATURAL RESOURCES IN HIS ORDER OF EXECUTION DATED 06 JANUARY 1987 (EXHIBIT "B" OF ATTACHMENT "O") ISSUED IN MNR CASE NO. 6540 DESPITE THE FACT THAT PETITIONER WAS NEVER A PARTY NOR A PARTICIPANT IN THE SAID CASE: IN FACT, PETITIONER NEVER HAD NOTICE OF THE PROCEEDINGS IN MNR CASE NO. 6540. IIchanroblesvirtualawlibrary THE FAILURE TO AFFORD PETITIONER THE OPPORTUNITY TO BE HEARD IN THE ADMINISTRATIVE LEVEL (MNR CASE NO. 6540) COULD NOT HAVE BEEN CURED BY THE

INSTITUTION OF THE ACTION FOR PROHIBITION IN THE TRIAL COURT BECAUSE SAID COURT HAD NO JURISDICTION TO DETERMINE WHETHER PETITIONER WAS GUILTY OF ENCROACHMENT ON PRIVATE RESPONDENT DAVENCORS TIMBER CONCESSION; FURTHERMORE, THE QUESTION ON WHETHER PETITIONER WAS GUILTY OF ENCROACHMENT WAS NEVER PUT IN ISSUE IN THE CASE BEFORE THE TRIAL COURT. IIIchanroblesvirtualawlibrary THE LIABILITY OF MILAGROS/MLE AS FOUND BY RESPONDENT SECRETARY IN ITS DECISION DATED 01 OCTOBER 1986 (EXHIBIT "A" OF THE ATTACHMENT "0") CANNOT BE IMPUTED AGAINST PETITIONER SINCE THE LATTER IS A CORPORATION HAVING A PERSONALITY SEPARATE AND DISTINCT FROM MILAGROS/MLE. IVchanroblesvirtualawlibrary PETITIONER CANNOT BE MADE LIABLE TO PRIVATE RESPONDENTS UNDER THE DEED OF TRANSFER DATED 18 JULY 1975 (EXHIBIT "3" OF ATTACHMENT "P") AND SECTION 61 OF THE REVISED FORESTRY CODE OF THE PHILIPPINES (P.D. 705, AS AMENDED):chanroblesvirtualawlibrary A. THE ALLEGED TRANSFER OF PTL NO. 30 FROM MILAGROS/MLE TO PETITIONER NEVER BECAME BINDING AND EFFECTIVE SINCE PTL NO. 30 REMAINED IN THE NAME OF MILAGROS/MLE UNTIL ITS EXPIRATION ON 30 JUNE 1977: THIS IS DUE TO THE FACT THAT SAID TRANSFER WAS NEVER APPROVED BY THE SECRETARY OF NATURAL RESOURCES.chanroblesvirtualawlibrary B. GRANTING ARGUENDO THAT THERE WAS AN EFFECTIVE TRANSFER OF PTL NO. 30 FROM MILAGROS/MLE TO PETITIONER, THE TRANSFER COULD NOT MAKE PETITIONER LIABLE FOR THE ALLEGED ENCROACHMENT OF PRIVATE RESPONDENT DAVENCORS TIMBER CONCESSION, SINCE: 1. SAID TRANSFER WAS EXECUTED PRIOR TO THE COMMISSION OF THE ALLEGED ENCROACHMENT AND THE FILING OF THE ADMINISTRATIVE COMPLAINT FOR ENCROACHMENT DATED 28 JULY 1975; THUS, PETITIONER CANNOT BE MADE LIABLE FOR OBLIGATONS OF MILAGROS/MLE WHICH WERE INCURRED AFTER DATE OF THE SAID TRANSFER. 2. SAID TRANSFER COVERED ONLY FORESTRY CHARGES AND OTHER GOVERNMENT FEES, AND DID NOT INCLUDE THE PERSONAL LIABILITY OF MILAGROS/MLE THAT AROSE FROM THE ENCROACHMENT OF THE TIMBER CONCESSION OF RESPONDENT DAVENCOR.[25]chanroblesvirtualawlibrary Private Respondent DAVENCOR and the public respondent Hon. Minister (now Secretary) of Natural Resources filed separate Comments[26] on September 5, 1991 and June 8, 1992 respectively.chanroblesvirtualawlibrary

The essential issues of the present controversy boil down to the following:chanroblesvirtualawlibrary Was the Petitioner denied due process when it was adjudged liable with MLE for encroaching upon the timber concession of DAVENCOR in the respondent Minister's order of Execution?chanroblesvirtualawlibrary Is the petitioner a transferee of MLE's interest, as to make it liable for the latters illegal logging operations in DAVENCORs timber concession, or more specifically, is it possible to pierce the veil of MIWPIs corporate existence, making it a mere conduit or successor of MLE?chanroblesvirtualawlibrary Generally accepted is the principle that no man shall be affected by any proceeding to which he is a stranger, and strangers to a case are not bound by judgment rendered by the court. In the same manner an execution can be issued only against a party and not against one who did not have his day in court. In Lorenzo vs. Cayetano, 78 SCRA 485 [1987], this Court held that only real parties in interest in an action are bound by judgment therein and by writs of execution and demolition issued pursuant thereto.[27]chanroblesvirtualawlibrary Indeed a judgment cannot bind persons who are not parties to the action.[28] It is elementary that strangers to a case are not bound by the judgment rendered by the court and such judgment is not available as an adjudication either against or in favor of such other person. A decision of a court will not operate to divest the rights of a person who has not and has never been a party to a litigation, either as plaintiff or as defendant. Execution of a judgment can only be issued against one who is a party to the action, and not against one who, not being a party in the action has not yet had his day in court.[29]chanroblesvirtualawlibrary The writ of execution must conform to the judgment which is to be executed, as it may not vary the terms of the judgment it seeks to enforce.[30] Nor may it go beyond the terms of the judgment which sought to be executed. Where the execution is not in harmony with the judgment which gives it life and exceeds it, it has pro tanto no validity. To maintain otherwise would be to ignore the constitutional provision against depriving a person of his property without due process of law.[31]chanroblesvirtualawlibrary The writ of execution issued by the Secretary of Natural Resources on January 8, 1987 clearly varies the term of his Decision of October 1, 1986, inasmuch as the Writ includes the MIWPI as party liable whereas the Decision only mentions Milagros Matuguina/MLE.chanroblesvirtualawlibrary There is no basis for the issuance of the Order of Execution against the petitioner. The same was issued without giving the petitioner an opportunity to defend itself and oppose the request of DAVENCOR for the issuance of a writ of execution against it. In fact, it does not appear that petitioner was at all furnished with a copy of DAVENCORs letter requesting for the Execution of the Honorable Secretarys decision against it. Petitioner was suddenly made liable upon the order of execution by the respondent Secretarys expedient conclusions that MLE and MIWPI are one and the same, apparently on the basis merely of DAVENCORs letter requesting for the Order, and without hearing or impleading MIWPI.

Until the issuance of the Order of execution, petitioner was not included or mentioned in the proceedings as having any participation in the encroachment in DAVENCORs timber concession. This action of the respondent Secretary disregards the most basic tenets of due process and elementary fairness.chanroblesvirtualawlibrary The liberal atmosphere which pervades the procedure in administrative proceedings does not empower the presiding officer to make conclusions of fact before hearing all the parties concerned.[32] In Police Commission vs. Hon Judge Lood,[33] we held that the formalities usually attendant in court hearings need not be present in an administrative investigation, provided that the parties are heard and given the opportunity to adduce their evidence. The right to notice and hearing is essential to due process and its non-observance will, as a rule, invalidate the administrative proceedings.chanroblesvirtualawlibrary As observed by the appellate court, to wit:chanroblesvirtualawlibrary "the appellant should have filed a Motion with the Minister with Notice to the appellee to include the latter as party liable for the judgment in order to afford the appellee an opportunity to be heard on its liability for the judgment rendered against Ma. Milagros Matuguina doing business under the name Matuguina Logging Enterprises.[34]chanroblesvirtualawlibrary Continuing, the said court stated further that:chanroblesvirtualawlibrary "Nevertheless, the failure to comply with the procedure in order to satisfy the requirements of due process was cured by the present action for prohibition where the liability of appellee has been ventilated."chanroblesvirtualawlibrary We do not agree. Essentially, Prohibition is a remedy to prevent inferior courts, corporations, boards or persons from usurping or exercising a jurisdiction or power with which they have not been vested by law[35] As we held in Mafinco Trading Corporation vs. Ople, et al,[36] in a certiorari or prohibition case, only issues affecting the jurisdiction of the tribunal, board and offices involved may be resolved on the basis of undisputed facts.chanroblesvirtualawlibrary The issue of whether or not petitioner is an alter ego of Milagros Matuguina/MLE, is one of fact, and which should have been threshed out in the administrative proceedings, and not in the prohibition proceedings in the trial court, where it is precisely the failure of the respondent Minister of Natural Resources to proceed as mandated by law in the execution of its order which is under scrutiny.chanroblesvirtualawlibrary Assuming, arguendo, that prohibition is the proper remedy for determining the propriety of piercing the separate personality of petitioner with its stockholders, the evidence presented at said trial does not warrant such action.chanroblesvirtualawlibrary It is settled that a corporation is clothed with a personality separate and distinct from that of persons composing it. It may not generally be held liable for that of the persons composing it. It may not be held liable for the personal indebtedness of its stockholders or those of the entities connected with it. Conversely, a stockholder cannot be made to answer for any of its financial obligations even if he

should be its president.[37] But when the juridical personality of the corporation is used to defeat public convenience, justify wrong, protect fraud or defend crime, the corporation shall be considered as a mere association of persons (Koppel, Inc. vs. Yatco, 77 Phil 496, Palay, Inc. vs. Clave, G.R. No. 56076, September 21, 1983, 124 SCRA 638), and its responsible officers and/or stockholders shall be individually liable (Namarco vs. Associated Finance Co., Inc., G.R. No. L- 20886, April 27, 1967, 19 SCRA 962). For the same reasons, a corporation shall be liable for the obligations of a stockholder (Palacio vs. Fely Transportation Co., G.R. No. L-15121, August 31, 1963, 5 SCRA 1011), or a corporation and its successor-in-interest shall be considered as one and the liability of the former attach to the latter.[38]chanroblesvirtualawlibrary But for the separate juridical personality of a corporation to be disregarded, the wrongdoing must be clearly and convincingly established. It cannot be presumed.[39]chanroblesvirtualawlibrary In the case at bar, there is, insufficient basis for the appellate courts ruling that MIWPI is the same as Matuguina. The trial courts observation is enlightening.chanroblesvirtualawlibrary "Despite apparently opposing evidence of both parties, the Court gathered and finds, that defendants attempt to pierce the veil of corporate personality of plaintiff corporation, as to consider plaintiff corporations merely an adjunct or alter ego of Maria Milagros Matuguina Logging Enterprises, to justify defendants claim against plaintiff corporation, suffers heavily from insufficiency of evidence.chanroblesvirtualawlibrary It is the vehement contention of defendants, to bolster its claim, that plaintiff corporation is the alter ego of Maria Milagros Matuguina Logging Enterprises, because when Milagros Matuguina became the Chairman of the Board of Directors of plaintiff corporation, she requested for the change of name and transfer of management of PTL No. 30, from her single proprietorship, to plaintiff corporation.chanroblesvirtualawlibrary Secondly, when Milagros Matuguina executed the deed of transfer, transferring her forest concession under PTL No, 30, together with all the structures and improvements therein, to plaintiff corporation, for a consideration of P14,800.00 representing 148,000 shares of stocks of plaintiff corporation actually all existing shares of stocks of Milagros Matuguina, in plaintiff corporation represents 77.4% therein; suffice to say that plaintiff corporation practically became an alter ego of Milagros Matuguina.chanroblesvirtualawlibrary Defendants arguments on this peripheral aspect of corporate existence, do not at all indicate that such a legal fiction, was granted.chanroblesvirtualawlibrary In the first place the alleged control of plaintiff corporation was not evident in any particular corporate acts of plaintiff corporation, wherein Maria Milagros Matuguina Logging Enterprises using plaintiff corporation, executed acts or powers directly involving plaintiff corporation.chanroblesvirtualawlibrary Neither was there any evidence of defendants, that Maria Milagros Matuguina Logging Enterprises, using the facilities and resources of plaintiff corporation, involved itself in transaction using both single

proprietorship and plaintiff corporation in such particular line of business undertakings.chanroblesvirtualawlibrary As stated by this court in resolving plaintiffs prayer for issuance of a writ of preliminary injunction, said:chanroblesvirtualawlibrary There is actually, no evidence presented by defendant, showing that sometime on March 15, 1986, to January 1987, during which period, the subject decision of Hon. Secretary of Natural Resources and corresponding writ of execution, Maria Milagros Matuguina was a stockholder of plaintiff corporation in such amount or was she an officer of plaintiff corporation in whatever capacity.chanroblesvirtualawlibrary The above circumstances is relevant and significant to assume any such justification of including plaintiff corporation in the subject writ of execution, otherwise as maintained by defendants, what matters most was the control of Milagros Matuguina Logging Enterprises of plaintiff corporation in 1974 and 1975, when the administrative case was pending, this circumstance alone without formally including plaintiff corporation in said case, will not create any valid and sufficient justification for plaintiff corporation, to have been supposedly included in the suit against defendants and Maria Milagros Matuguina Logging Enterprises, in the administrative case.chanroblesvirtualawlibrary Yet, granting as claimed by defendants, that in 1974 or in 1975, Maria Milagros Matuguina became the controlling stockholder of plaintiff corporation, on account of the change of name and transfer of management of PTL No. 30, this circumstance, we repeat, does not of itself prove that plaintiff corporation was the alter ego of Maria Milagros Matuguina Logging Enterprise, as enunciated in various decisions of this Court, to wit:chanroblesvirtualawlibrary It is important to bear in mind that mere ownership by a single stockholder or by another corporation of all or nearly all of the capital stocks of the corporation, is not itself a sufficient warrant for disregarding the fiction of separate personality. (Liddel and Co. vs. Collector of Internal revenue, G.R. No. 9687, June 30, 1961).chanroblesvirtualawlibrary It is recognized as lawful to obtain a corporation charter, even with a single substantial stockholder, to engage in specific activity and such activity may co-exist with other private activities of the stockholders.chanroblesvirtualawlibrary If the corporation is substantial one, conducted lawfully; without fraud on another, its separate identity is to be respected.[40]chanroblesvirtualawlibrary In this jurisdiction, it is a settled rule that conclusions and findings of fact by trial court are entitled to great weight on appeal and should not be disturbed unless for strong and cogent reasons because the trial court is in a better position to examine real evidence, as well as to observe the demeanor of the witnesses while testifying in the case.[41]chanroblesvirtualawlibrary

It is likewise improper to state that the MIWPI is the privy or the successor-in-interest of MLE, as the liability for the encroachment over DAVENCORs timber concession is concerned, by reason of the transfer of interest in PTL No. 30 from MLE to MIWPI.chanroblesvirtualawlibrary First at all, it does not appear indubitable that the said transfer ever became effective, since PTL No. 30 remained in the name of Milagros Matuguina/MLE until it expired on June 30, 1977.[42]chanroblesvirtualawlibrary More importantly, even if it is deemed that there was a valid change of name and transfer of interest in the PTL No. 30, this only signifies a transfer of authority, from MLE to MIWPI, to conduct logging operations in the area covered by PTL No. 30. It does not show indubitable proof that MIWPI was a mere conduit or successor of Milagros Matuguina/MLE, as far the latters liability for the encroachment upon DAVENCORs concession is concerned. This is the only conclusion which we can discern from the language of Section 61 of P.D. 705,[43] and the letters of the Acting Minister of Natural Resources to Milagros Matuguina/MLE and to MIWPI, on September 16, 1975.[44] In Soriano vs. Court of Appeals, this Court stated in clear language, that-chanroblesvirtualawlibrary "It is the general rule that the protective mantle of a corporations separate and distinct personality could only be pierced and liability attached directly to its officers and/or members stockholders, when the same is used for fraudulent, unfair, or illegal purpose. In the case at bar, there is no showing that the Association entered into the transaction with the private respondent for the purpose of defrauding the latter of his goods or the payment thereof. xxx. Therefore, the general rule on corporate liability, not the exception, should be applied in resolving this case. (G.R. No. 49834, June 22, 1989)chanroblesvirtualawlibrary The respondents cite Section 61 of P.D. 705 to establish MIWPIs succession to the liability of Milagros Matuguina/MLE:chanroblesvirtualawlibrary "SEC. 61. Transfer. Unless authorized by the Department Head, no licensee, lessee, or permittee may transfer, exchange, sell, or convey his license agreement, license, lease or permit, or any of his rights or interest therein, or any of his assets used in connection therewith.chanroblesvirtualawlibrary The licensee, lessee, or permittee shall be allowed to transfer or convey his license agreement, license, lease, or permit only if he has not violated any forestry law, rule or regulation; has been faithfully complying with the terms and conditions of the license agreement, license, lease or permit; the transferee has all the qualifications and none of the disqualifications to hold a license agreement, license, lease or permit; there is no evidence that such transfer or conveyance is being made for purposes of speculation; and the transferee shall assume all the obligations of the transferor.chanroblesvirtualawlibrary The transferor shall forever be barred from acquiring another license agreement, license, lease or permit."chanroblesvirtualawlibrary

Even if it is mandated in the abovestated provision that "the transferee shall assume all the obligations of the transferor" this does not mean that all obligations are assumed, indiscriminately.chanroblesvirtualawlibrary Invariably, it is not the letter, but the spirit of the law and intent of the legislature that is important. When the interpretation of a statute according to the exact and literal import of its words would lead to absurdity, it should be construed according to the spirit and reason, disregarding if necessary the letter of the law.[45]chanroblesvirtualawlibrary In construing statutes, the terms used therein are generally to be given their ordinary meaning, that is, such meaning which is ascribed to them when they are commonly used, to the end that absurdity in the law must be avoided.[46] The term "obligations" as used in the final clause of the second paragraph of Section 61 of P.D. 705 is construed to mean those obligations incurred by the transferor in the ordinary course of business. It cannot be construed to mean those obligations or liabilities incurred by the transferor as a result of transgressions of the law, as these are personal obligations of the transferor, and could not have been included in the term "obligations" absent any modifying provision to that effect.chanroblesvirtualawlibrary In the September 16, 1975 letters of Acting Director of the Bureau of Forest Development to Milagros Matuguina and MIWPI informing them of the approval of Matuguina's request for the change of name and transfer of management of PTL No. 30, the following statements were made by the Acting Director:chanroblesvirtualawlibrary "In view hereof, (Matuguina Integrated Wood Products, Inc.) shall assume the responsibility of paying whatever pending liabilities and/or accounts remaining unsettled, if any, by the former licensee, Milagros Matuguina, with the government." (Emphasis ours)[47]chanroblesvirtualawlibrary Accordingly, the letter's language implies that the obligations which MIWPI are to assume as transferee of Milagros Matuguina/MLE are those obligations in favor of the government only, and not to any other entity. Thus this would include Forestry Charges, Taxes, Fees, and similar accountabilities.chanroblesvirtualawlibrary In sum, the Court makes the following pronouncements:chanroblesvirtualawlibrary (a) The respondent Honorable Minister of Natural Resources gravely abuse its discretion when it issued its Order of Execution on January 6, 1987, including therein as one of the parties liable the petitioner Matuguina Integrated Wood Products, Inc., which was never a party to the assailed proceeding resulting in the issuance of such Order and, without affording the same an opportunity to be heard before it was adjudged liable.chanroblesvirtualawlibrary (b) The petitioner is a corporate entity separate and distinct from Milagros Matuguina/Matuguina Logging Enterprises, there being no clear basis for considering it as a mere conduit or alter ego of Matuguina/MLE, and therefore, cannot be made liable for the obligations of the same for encroachment over the timber concession of private respondent DAVENCOR.chanroblesvirtualawlibrary

IN VIEW OF THE FOREGOING, the petition is hereby GRANTED, and the Decision dated February 25, 1991 is SET ASIDE. The decision of the Regional Trial Court is hereby REINSTATED, and correspondingly, Order of Execution of the respondent Secretary of Natural Resources is declared Null and Void and without effect.chanroblesvirtualawlibrary No pronouncement as to cost.chanroblesvirtualawlibrary SO ORDERED.chanroblesvirtualawlibrary Republic of the Philippines SUPREME COURT Manila THIRD DIVISION [G.R. No. 118882. September 26, 1996] PEOPLE OF THE PHILIPPINES, Petitioner, vs. COURT OF APPEALS, HON. PEDRO S. ESPINA, CRISTETA REYES, JOHNY SANTOS, ANTONIO ALEGRO, ROGELIO MENGUIN, PETE ALVERIO, ROGEN DOCTORA and JANE GO, Respondents. --> RESOLUTION MELO, J.:chanroblesvirtualawlibrary Before us is a petition for review with an urgent prayer for a writ of preliminary injunction and/or restraining order which seeks to: (a) annul and set aside the decision of the Court of Appeals in CAG.R. SP No. 31733 entitled "People of the Philippines vs. Hon. Pedro S. Espina et al.", insofar as it denied the People's prayer to inhibit respondent Judge Pedro S. Espina of the Regional Trial Court of Tacloban City from hearing Criminal Cases No. 93-01-38 & 9301-39, respectively, entitled "People of the Philippines vs. Cristeta Reyes, et al." and "People of the Philippines vs. Jane C. Go"; and b) enjoin respondent judge from conducting further proceedings in the aforesaid criminal cases.chanroblesvirtualawlibrary Acting on the said petition, the Court on April 3, 1995 resolved to require respondents all of whom are the accused in the aforesaid criminal cases, to comment thereon within 10 days from notice, to issue the temporary restraining order prayed for, and to enjoin respondent judge from taking further action in Criminal Cases No. 93-01-38 & 93-01-39 until further orders from the Court.chanroblesvirtualawlibrary It appearing that private respondents Cristeta Reyes & Rogen Doctora, Johny Santos & Antonio Alegro & Jane C. Go failed to file their respective comments within the period which expired on April 17, 1995 and April 18, 1995, respectively, the Court on June 26, 1995 resolved to require said private respondents to show cause why they should not be disciplinary dealt with for such failure, and to file the required comments, both within ten (10) days from notice.chanroblesvirtualawlibrary

As to respondents Johny Santos & Antonio Alegro (prisoners at the Tacloban City Jail), copies of the resolution requiring them to file comment were returned unserved with the postmaster's notation "unknown in said address". The Court, on October 11, 1995 directed the Solicitor General to serve the same on said respondents and to inform the Court of such service, both within ten (10) days from notice.chanroblesvirtualawlibrary The Office of the Solicitor General filed a Compliance stating that the required copies were sent to private respondents Santos & Alegro through ordinary mail on December 26, 1995.chanroblesvirtualawlibrary To date, all the respondents have not yet filed their comments, for verily, delay in the submission of the same would appear to benefit respondents, and sanction against them may not really amount to much, considering that most of them are under detention. Thus, so as not to unduly delay the disposition of Criminal Cases No. 93-01-38 and 93-01-39, we now resolve to dispense with respondent's comments and to proceed with the disposition of the petition.chanroblesvirtualawlibrary One of the essential requirements of procedural due process in a judicial proceeding is that there must be an impartial court or tribunal clothed with judicial power to hear and determine the matter before it. Thus, every litigant, including the State, is entitled to the cold neutrality of an impartial judge which was explained in Javier vs. Commission of Elections (144 SCRA 194 [1986]), in the following words:chanroblesvirtualawlibrary This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge" as the indispensable imperative of due process. To bolster that requirement, we have held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just. The litigants are entitled to no less than that. They should be sure that when their rights are violated they can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to him at all. They must believe in his sense of fairness, otherwise they will not seek his judgment. Without such confidence, there would be no point in invoking his action for the justice they expect.chanroblesvirtualawlibrary Due process is intended to insure that confidence by requiring compliance with what Justice Frankfurter calls the rudiments of fair play. Fair play calls for equal justice. There cannot be equal justice where a suitor approaches a court already committed to the other party and with a judgment already made and waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing. Judicial (and also extrajudicial) proceedings are not orchestrated plays in which the parties are supposed to make the motions and reach the denoucement according to a prepared script. There is no writer to foreordain the ending. The Judge will reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the established facts and the pertinent law.chanroblesvirtualawlibrary In the case at bar, Judge Pedro Espina, as correctly pointed out by the Solicitor General, can not be considered to adequately possess such cold neutrality of an impartial judge as to fairly assess both the evidence to be adduced by the prosecution and the defense in view of his previous decision in Special

Civil Action No. 92-11-219 wherein he enjoined the preliminary investigation at the Regional State Prosecutor's Office level against herein respondent Jane Go, the principal accused in the killing of her husband Dominador Go.chanroblesvirtualawlibrary Judge Espina's decision in favor of respondent Jane Go serves as sufficient and reasonable basis for the prosecution to seriously doubt his impartiality in handling the criminal cases. Verily, it would have been more prudent for Judge Espina to have voluntarily inhibited himself from hearing the criminal cases.chanroblesvirtualawlibrary WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals in CA-G.R. No. 31733 is hereby SET ASIDE and The Honorable Pedro Espina, Presiding Judge of Branch 7 of the Regional Trial Court of the 8th Judicial Region stationed in Tacloban is hereby declared disqualified from taking cognizance of Criminal Cases No. 93-01-38 and 93-01-39. It is further ordered that these criminal cases be re-raffled to another branch of the Regional Trial Court of Tacloban City.chanroblesvirtualawlibrary SO ORDERED.chanroblesvirtualawlibrary Narvasa, C.J., (Chairman), Davide, Jr., Francisco, and Panganiban, JJ, concur. Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. Nos. L-68379-81 September 22, 1986 EVELIO B. JAVIER, Petitioner, vs. THE COMMISSION ON ELECTIONS, and ARTURO F. PACIFICADOR, Respondents.

CRUZ, J.: chanrobles virtual law library The new Solicitor General has moved to dismiss this petition on the ground that as a result of supervening events it has become moot and academic. It is not as simple as that. Several lives have been lost in connection with this case, including that of the petitioner himself. The private respondent is now in hiding. The purity of suffrage has been defiled and the popular will scorned through a confabulation of those in authority. This Court cannot keep silent in the face of these terrible facts. The motion is denied.chanroblesvirtualawlibrary chanrobles virtual law library The petitioner and the private respondent were candidates in Antique for the Batasang Pambansa in the May 1984 elections. The former appeared to enjoy more popular support but the latter had the advantage of being the nominee of the KBL with all its perquisites of power. On May 13, 1984, the eve

of the elections, the bitter contest between the two came to a head when several followers of the petitioner were ambushed and killed, allegedly by the latter's men. Seven suspects, including respondent Pacificador, are now facing trial for these murders. The incident naturally heightened tension in the province and sharpened the climate of fear among the electorate. Conceivably, it intimidated voters against supporting the Opposition candidate or into supporting the candidate of the ruling party.chanroblesvirtualawlibrary chanrobles virtual law library It was in this atmosphere that the voting was held, and the post-election developments were to run true to form. Owing to what he claimed were attempts to railroad the private respondent's proclamation, the petitioner went to the Commission on Elections to question the canvass of the election returns. His complaints were dismissed and the private respondent was proclaimed winner by the Second Division of the said body. The petitioner thereupon came to this Court, arguing that the proclamation was void because made only by a division and not by the Commission on Elections en banc as required by the Constitution. Meanwhile, on the strength of his proclamation, the private respondent took his oath as a member of the Batasang Pambansa.chanroblesvirtualawlibrary chanrobles virtual law library The case was still being considered by this Court when on February 11, 1986, the petitioner was gunned down in cold blood and in broad daylight. The nation, already indignant over the obvious manipulation of the presidential elections in favor of Marcos, was revolted by the killing, which flaunted a scornful disregard for the law by the assailants who apparently believed they were above the law. This ruthless murder was possibly one of the factors that strengthened the cause of the Opposition in the February revolution that toppled the Marcos regime and installed the present government under President Corazon C. Aquino.chanroblesvirtualawlibrary chanrobles virtual law library The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner and the private respondent-both of whom have gone their separate ways-could be a convenient justification for dismissing this case. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic.chanroblesvirtualawlibrary chanrobles virtual law library The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future.chanroblesvirtualawlibrary chanrobles virtual law library It is a notorious fact decried by many people and even by the foreign press that elections during the period of the Marcos dictatorship were in the main a desecration of the right of suffrage. Vote-buying, intimidation and violence, illegal listing of voters, falsified returns, and other elections anomalies misrepresented and vitiated the popular will and led to the induction in office of persons who did not

enjoy the confidence of the sovereign electorate. Genuine elections were a rarity. The price at times was human lives. The rule was chicanery and irregularity, and on all levels of the polls, from the barangay to the presidential. This included the rigged plebiscites and referenda that also elicited the derision and provoked the resentments of the people.chanroblesvirtualawlibrary chanrobles virtual law library Antique in 1984 hewed to the line and equaled if it did not surpass the viciousness of elections in other provinces dominated by the KBL. Terrorism was a special feature, as demonstrated by the killings previously mentioned, which victimized no less than one of the main protagonists and implicated his rival as a principal perpetrator. Opposition leaders were in constant peril of their lives even as their supporters were gripped with fear of violence at the hands of the party in power.chanroblesvirtualawlibrary chanrobles virtual law library What made the situation especially deplorable was the apparently indifferent attitude of the Commission on Elections toward the anomalies being committed. It is a matter of record that the petitioner complained against the terroristic acts of his opponents. All the electoral body did was refer the matter to the Armed Forces without taking a more active step as befitted its constitutional role as the guardian of free, orderly and honest elections. A more assertive stance could have averted the Sibalom election eve massacre and saved the lives of the nine victims of the tragedy.chanroblesvirtualawlibrary chanrobles virtual law library Public confidence in the Commission on Elections was practically nil because of its transparent bias in favor of the administration. This prejudice left many opposition candidates without recourse except only to this Court.chanroblesvirtualawlibrary chanrobles virtual law library Alleging serious anomalies in the conduct of the elections and the canvass of the election returns, the petitioner went to the Commission on Elections to prevent the impending proclamation of his rival, the private respondent herein. 1 Specifically, the petitioner charged that the elections were marred by "massive terrorism, intimidation, duress, vote-buying, fraud, tampering and falsification of election returns under duress, threat and intimidation, snatching of ballot boxes perpetrated by the armed men of respondent Pacificador." 2 Particular mention was made of the municipalities of Caluya, Cabate, Tibiao, Barbaza, Laua-an, and also of San Remigio, where the petitioner claimed the election returns were not placed in the ballot boxes but merely wrapped in cement bags or Manila paper.chanroblesvirtualawlibrary chanrobles virtual law library On May 18, 1984, the Second Division of the Commission on Elections directed the provincial board of canvassers of Antique to proceed with the canvass but to suspend the proclamation of the winning candidate until further orders. 3 On June 7, 1984, the same Second Division ordered the board to immediately convene and to proclaim the winner without prejudice to the outcome of the case before the Commission. 4 On certiorari before this Court, the proclamation made by the board of canvassers was set aside as premature, having been made before the lapse of the 5-day period of appeal, which the petitioner had seasonably made. 5 Finally, on July 23, 1984, the Second Division promulgated the decision now subject of this petition which inter alia proclaimed Arturo F. Pacificador the elected assemblyman of the province of Antique. 6 chanrobles virtual law library

This decision was signed by Chairman Victoriano Savellano and Commissioners Jaime Opinion and Froilan M. Bacungan. Previously asked to inhibit himself on the ground that he was a former law partner of private respondent Pacificador, Opinion had refused. 7 chanrobles virtual law library The petitioner then came to this Court, asking us to annul the said decision.chanroblesvirtualawlibrary chanrobles virtual law library The core question in this case is one of jurisdiction, to wit: Was the Second Division of the Commission on Elections authorized to promulgate its decision of July 23, 1984, proclaiming the private respondent the winner in the election? chanrobles virtual law library The applicable provisions are found in Article XII-C, Sections 2 and 3, of the 1973 Constitution.chanroblesvirtualawlibrary chanrobles virtual law library Section 2 confers on the Commission on Elections the power to: (2) Be the sole judge of all contests relating to the election, returns and qualifications of all member of the Batasang Pambansa and elective provincial and city officials. Section 3 provides: The Commission on Elections may sit en banc or in three divisions. All election cases may be heard and decided by divisions except contests involving members of the Batasang Pambansa, which shall be heard and decided en banc. Unless otherwise provided by law, all election cases shall be decided within ninety days from the date of their submission for decision. While both invoking the above provisions, the petitioner and the respondents have arrived at opposite conclusions. The records are voluminous and some of the pleadings are exhaustive and in part even erudite. And well they might be, for the noble profession of the law-despite all the canards that have been flung against it-exerts all efforts and considers all possible viewpoints in its earnest search of the truth.chanroblesvirtualawlibrary chanrobles virtual law library The petitioner complains that the Proclamation made by the Second Division is invalid because all contests involving the members of the Batasang Pambansa come under the jurisdiction of the Commission on Elections en banc. This is as it should be, he says, to insure a more careful decision, considering the importance of the offices involved. The respondents, for their part, argue that only contests need to be heard and decided en banc and all other cases can be-in fact, should be-filed with and decided only by any of the three divisions.chanroblesvirtualawlibrary chanrobles virtual law library The former Solicitor General makes much of this argument and lays a plausible distinction between the terms "contests" and "cases" to prove his point. 8 Simply put, his contention is that the preproclamation controversy between the petitioner and the private respondent was not yet a contest at that time and therefore could be validly heard by a mere division of the Commission on Elections, consonant with Section 3. The issue was at this stage still administrative and so was resoluble by the Commission under its power to administer all laws relative to the conduct of elections, 9 not its authority as sole judge of the election contest.chanroblesvirtualawlibrary chanrobles virtual law library

A contest, according to him, should involve a contention between the parties for the same office "in which the contestant seeks not only to oust the intruder but also to have himself inducted into the office." 10 No proclamation had as yet been made when the petition was filed and later decided. Hence, since neither the petitioner nor the private respondent had at that time assumed office, there was no Member of the Batasang Pambansa from Antique whose election, returns or qualifications could be examined by the Commission on Elections en banc. chanrobles virtual law library In providing that the Commission on Elections could act in division when deciding election cases, according to this theory, the Constitution was laying down the general rule. The exception was the election contest involving the members of the Batasang Pambansa, which had to be heard and decided en banc. 11 The en banc requirement would apply only from the time a candidate for the Batasang Pambansa was proclaimed as winner, for it was only then that a contest could be permitted under the law. All matters arising before such time were, necessarily, subject to decision only by division of the Commission as these would come under the general heading of "election cases." chanrobles virtual law library As the Court sees it, the effect of this interpretation would be to divide the jurisdiction of the Commission on Elections into two, viz.: (1) over matters arising before the proclamation, which should be heard and decided by division in the exercise of its administrative power; and (2) over matters arising after the proclamation, which could be heard and decided only en banc in the exercise of its judicial power. Stated otherwise, the Commission as a whole could not act as sole judge as long as one of its divisions was hearing a pre-proclamation matter affecting the candidates for the Batasang Pambansa because there was as yet no contest; or to put it still another way, the Commission en banc could not do what one of its divisions was competent to do, i.e., decide a pre-proclamation controversy. Moreover, a mere division of the Commission on Elections could hear and decide, save only those involving the election, returns and qualifications of the members of the Batasang Pambansa, all cases involving elective provincial and city officials from start to finish, including pre-proclamation controversies and up to the election protest. In doing so, it would exercise first administrative and then judicial powers. But in the case of the Commission en banc, its jurisdiction would begin only after the proclamation was made and a contest was filed and not at any time and on any matter before that, and always in the exercise only of judicial power.chanroblesvirtualawlibrary chanrobles virtual law library This interpretation would give to the part more powers than were enjoyed by the whole, granting to the division while denying to the banc. We do not think this was the intention of the Constitution. The framers could not have intended such an irrational rule.chanroblesvirtualawlibrary chanrobles virtual law library We believe that in making the Commission on Elections the sole judge of all contests involving the election, returns and qualifications of the members of the Batasang Pambansa and elective provincial and city officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all matters related thereto, including those arising before the proclamation of the winners.

It is worth observing that the special procedure for the settlement of what are now called "preproclamation controversies" is a relatively recent innovation in our laws, having been introduced only in 1978, through P.D. No. 1296, otherwise known as the 1978 Election Code. Section 175 thereof provided: Sec. 175. Suspension and annulment of proclamation.-The Commission shall be the sole judge of all pre-proclamation controversies and any of its decisions, orders or rulings shall be final and executory. It may, motu proprio or upon written petition, and after due notice and hearing order the suspension of the proclamation of a candidate-elect or annul any proclamation, if one has been made, on any of the grounds mentioned in Sections 172, 173 and 174 thereof. Before that time all proceedings affecting the election, returns and qualifications of public officers came under the complete jurisdiction of the competent court or tribunal from beginning to end and in the exercise of judicial power only. It therefore could not have been the intention of the framers in 1935, when the Commonwealth Charter was adopted, and even in 1973, when the past Constitution was imposed, to divide the electoral process into the pre-proclamation stage and the post-proclamation stage and to provide for a separate jurisdiction for each stage, considering the first administrative and the second judicial.chanroblesvirtualawlibrary chanrobles virtual law library Besides, the term "contest" as it was understood at the time Article XII-C. Section 2(2) was incorporated in the 1973 Constitution did not follow the strict definition of a contention between the parties for the same office. Under the Election Code of 1971, which presumably was taken into consideration when the 1973 Constitution was being drafted, election contests included the quo warranto petition that could be filed by any voter on the ground of disloyalty or ineligibility of the contestee although such voter was himself not claiming the office involved. 12 chanrobles virtual law library The word "contests" should not be given a restrictive meaning; on the contrary, it should receive the widest possible scope conformably to the rule that the words used in the Constitution should be interpreted liberally. As employed in the 1973 Constitution, the term should be understood as referring to any matter involving the title or claim of title to an elective office, made before or after proclamation of the winner, whether or not the contestant is claiming the office in dispute. Needless to stress, the term should be given a consistent meaning and understood in the same sense under both Section 2(2) and Section 3 of Article XII-C of the Constitution.chanroblesvirtualawlibrary chanrobles virtual law library The phrase "election, returns and qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the contestee's title. But if it is necessary to specify, we can say that "election" referred to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes; "returns" to the canvass of the returns and the proclamation of the winners, including questions concerning the composition of the board of canvassers and the authenticity of the election returns and "qualifications" to matters that could be raised in a quo warranto proceeding against the proclaimed winner, such as his disloyalty or

ineligibility or the inadequacy of his certificate of candidacy.chanroblesvirtualawlibrary chanrobles virtual law library All these came under the exclusive jurisdiction of the Commission on Elections insofar as they applied to the members of the defunct Batasang Pambansa and, under Article XII-C, Section 3, of the 1973 Constitution, could be heard and decided by it only en banc. We interpret "cases" as the generic term denoting the actions that might be heard and decided by the Commission on Elections, only by division as a general rule except where the case was a "contest" involving members of the Batasang Pambansa, which had to be heard and decided en banc.chanroblesvirtualawlibrary chanrobles virtual law library As correctly observed by the petitioner, the purpose of Section 3 in requiring that cases involving members of the Batasang Pambansa be heard and decided by the Commission en banc was to insure the most careful consideration of such cases. Obviously, that objective could not be achieved if the Commission could act en banc only after the proclamation had been made, for it might then be too late already. We are all-too-familiar with the grab-the-proclamation-and-delay-the-protest strategy of many unscrupulous candidates which has resulted in the frustration of the popular will and the virtual defeat of the real winners in the election. The respondent's theory would make this gambit possible for the pre- proclamation proceedings, being summary in nature, could be hastily decided by only three members in division, without the care and deliberation that would have otherwise been observed by the Commission en banc.chanroblesvirtualawlibrary chanrobles virtual law library After that, the delay. The Commission en banc might then no longer be able to rectify in time the proclamation summarily and not very judiciously made by the division. While in the end the protestant might be sustained, he might find himself with only a Phyrric victory because the term of his office would have already expired.chanroblesvirtualawlibrary chanrobles virtual law library It may be argued that in conferring the initial power to decide the pre- proclamation question upon the division, the Constitution did not intend to prevent the Commission en banc from exercising the power directly, on the theory that the greater power embraces the lesser. It could if it wanted to but then it could also allow the division to act for it. That argument would militate against the purpose of the provision, which precisely limited all questions affecting the election contest, as distinguished from election cases in general, to the jurisdiction of the Commission en banc as sole judge thereof. "Sole judge" excluded not only all other tribunals but also and even the division of the Commission A decision made on the contest by less than the Commission en banc would not meet the exacting standard of care and deliberation ordained by the Constitution chanrobles virtual law library Incidentally, in making the Commission the "sole judge" of pre- proclamation controversies in Section 175, supra, the law was obviously referring to the body sitting en banc. In fact, the pre-proclamation controversies involved in Aratuc vs. Commission on Elections, 13 where the said provision was applied, were heard and decided en banc.chanroblesvirtualawlibrary chanrobles virtual law library

Another matter deserving the highest consideration of this Court but accorded cavalier attention by the respondent Commission on Elections is due process of law, that ancient guaranty of justice and fair play which is the hallmark of the free society. Commissioner Opinion ignored it. Asked to inhibit himself on the ground that he was formerly a law partner of the private respondent, he obstinately insisted on participating in the case, denying he was biased. 14 chanrobles virtual law library Given the general attitude of the Commission on Elections toward the party in power at the time, and the particular relationship between Commissioner Opinion and MP Pacificador, one could not be at least apprehensive, if not certain, that the decision of the body would be adverse to the petitioner. As in fact it was. Commissioner Opinion's refusal to inhibit himself and his objection to the transfer of the case to another division cannot be justified by any criterion of propriety. His conduct on this matter belied his wounded protestations of innocence and proved the motives of the Second Division when it rendered its decision.chanroblesvirtualawlibrary chanrobles virtual law library This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge" as the indispensable imperative of due process. 15 To bolster that requirement, we have held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just. 16 The litigants are entitled to no less than that. They should be sure that when their rights are violated they can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to him at all. They must believe in his sense of fairness, otherwise they will not seek his judgment. Without such confidence, there would be no point in invoking his action for the justice they expect.chanroblesvirtualawlibrary chanrobles virtual law library Due process is intended to insure that confidence by requiring compliance with what Justice Frankfurter calls the rudiments of fair play. Fair play cans for equal justice. There cannot be equal justice where a suitor approaches a court already committed to the other party and with a judgment already made and waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing. Judicial (and also extra-judicial) proceedings are not orchestrated plays in which the parties are supposed to make the motions and reach the denouement according to a prepared script. There is no writer to foreordain the ending. The judge will reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the established facts and the pertinent law.chanroblesvirtualawlibrary chanrobles virtual law library The relationship of the judge with one of the parties may color the facts and distort the law to the prejudice of a just decision. Where this is probable or even only posssible, due process demands that the judge inhibit himself, if only out of a sense of delicadeza. For like Caesar's wife, he must be above suspicion. Commissioner Opinion, being a lawyer, should have recognized his duty and abided by this well-known rule of judicial conduct. For refusing to do so, he divested the Second Division of the necessary vote for the questioned decision, assuming it could act, and rendered the proceeding null and void. 17 chanrobles virtual law library Since this case began in 1984, many significant developments have taken place, not the least significant of which was the February revolution of "people power" that dislodged the past regime and ended well nigh twenty years of travail for this captive nation. The petitioner is gone, felled by a hail of bullets

sprayed with deadly purpose by assassins whose motive is yet to be disclosed. The private respondent has disappeared with the "pomp of power" he had before enjoyed. Even the Batasang Pambansa itself has been abolished, "an iniquitous vestige of the previous regime" discontinued by the Freedom Constitution. It is so easy now, as has been suggested not without reason, to send the rec rds of this case to the archives and say the case is finished and the book is closed.chanroblesvirtualawlibrary chanrobles virtual law library But not yet.chanroblesvirtualawlibrary chanrobles virtual law library Let us first say these meager words in tribute to a fallen hero who was struck down in the vigor of his youth because he dared to speak against tyranny. Where many kept a meekly silence for fear of retaliation, and still others feigned and fawned in hopes of safety and even reward, he chose to fight. He was not afraid. Money did not tempt him. Threats did not daunt him. Power did not awe him. His was a singular and all-exacting obsession: the return of freedom to his country. And though he fought not in the barricades of war amid the sound and smoke of shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against the enemies of his race, unfortunately of his race too, who would impose upon the land a perpetual night of dark enslavement. He did not see the breaking of the dawn, sad to say, but in a very real sense Evelio B. Javier made that dawn draw nearer because he was, like Saul and Jonathan, "swifter than eagles and stronger than lions." chanrobles virtual law library A year ago this Court received a letter which began: "I am the sister of the late Justice Calixto Zaldivar. I am the mother of Rhium Z. Sanchez, the grandmother of Plaridel Sanchez IV and Aldrich Sanchez, the aunt of Mamerta Zaldivar. I lost all four of them in the election eve ambush in Antique last year." She pleaded, as so did hundreds of others of her provincemates in separate signed petitions sent us, for the early resolution of that horrible crime, saying: "I am 82 years old now. I am sick. May I convey to you my prayer in church and my plea to you, 'Before I die, I would like to see justice to my son and grandsons.' May I also add that the people of Antique have not stopped praying that the true winner of the last elections will be decided upon by the Supreme Court soon." chanrobles virtual law library That was a year ago and since then a new government has taken over in the wake of the February revolution. The despot has escaped, and with him, let us pray, all the oppressions and repressions of the past have also been banished forever. A new spirit is now upon our land. A new vision limns the horizon. Now we can look forward with new hope that under the Constitution of the future every Filipino shall be truly sovereign in his own country, able to express his will through the pristine ballow with only his conscience as his counsel.chanroblesvirtualawlibrary chanrobles virtual law library This is not an impossible dream. Indeed, it is an approachable goal. It can and will be won if we are able at last, after our long ordeal, to say never again to tyranny. If we can do this with courage and conviction, then and only then, and not until then, can we truly say that the case is finished and the book is closed.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, let it be spread in the records of this case that were it not for the supervening events that have legally rendered it moot and academic, this petition would have been granted and the decision

of the Commission on Elections dated July 23, 1984, set aside as violative of the Constitution.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-52241 November 19, 1984 PEDRO M. AZUL, doing business under the names and styles of JERLYN TRADING & CONSTRUCTION SUPPLIES & BERLYN SERVICE CENTER, Petitioner, vs. HON. JOSE P. CASTRO, in his capacity as Presiding Judge of the Court of First Instance of Rizal, Branch IX at Quezon City, and ROSALINDA P. TECSON, Respondents.

GUTIERREZ, JR., J.: The petitioner raises due process questions in this petition for certiorari contending that the respondent court gravely abused its discretion-(l) when it denied a motion to lift an order of default issued seven (7) days before the petitioner received the order to file responsive pleading; (2) when it denied a motion for new trial or reconsideration on the ground that it was pro-forma; (3) when it rendered a decision, not supported by the facts and the law, granting a total amount of P1,187,615.69 covering the principal and damages in a connection case for only P250,092.55; (4) when it issued orders denying an extension of time to file the record on appeal and dismissing the appeal; and (5) when it issued a writ of preliminary attachment on a bond of P250,000.00 with no basis for the allegation that he is about to remove or dispose of his properties to further defraud his creditors.chanroblesvirtualawlibrary chanrobles virtual law library On March 14, 1979, respondent Rosalinda Tecson filed a complaint for collection of the sum of P250,092.55 with interests. Tecson also prayed for P100,000.00 actual and compensatory damages, P500,000.00 moral damages, exemplary damages as may be proved during the trial, twenty five percent (25%) attorney's fees, litigation expenses, and costs. The complaint alleged that Tecson, on various occasions, loaned a total of P391,822.78 to Azul to finance the latter's deliveries of supplies and construction materials to the Armed Forces of the Philippines. As inducement for the loans in addition to her share of the profits, the private respondent alleged that she was authorized to collect the checks due to Azul from the AFP Finance Center. However, Tecson was able to collect only P141,730.23 thus leaving a balance of P250,092.55, subject matter of the suit filed with the Court of First Instance of Rizal at Quezon City, then presided by Judge Ulpiano Sarmiento.chanroblesvirtualawlibrary chanrobles virtual law library

The copy of the complaint was received by petitioner Azul on March 27, 1979. On April 10, 1979, the petitioner filed an urgent ex-parte motion for extension of time to file a responsive pleading. He asked for fifteen (15) days from April 11, 1979.chanroblesvirtualawlibrary chanrobles virtual law library Judge Sarmiento having retired, Judge Lino Anover took over the sala temporarily and gave Azul only five (5) days from April 11, 1979 within which to file his responsive pleading.chanroblesvirtualawlibrary chanrobles virtual law library Unfortunately, the petitioner received this order dated April 11, 1979 to declare the petitioner in default since the extended period had expired.chanroblesvirtualawlibrary chanrobles virtual law library On April 18, 1979, respondent Judge Jose Castro over the sala vacated by Judge Sarmiento. Among his acts on that first day in office was an order declaring Azul in default and directing the presentation of evidence ex-parte before the branch clerk of court "at such time and date convenient to both." chanrobles virtual law library The reception of evidence was conducted by the court's commissioner on April 19, 1979. On April 27, 1979, the respondent court rendered the questioned decision, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered ordering the defendant to pay plaintiff as follows: chanrobles virtual law library a. The sum of P250,092.55 the principal obligation, with interest thereon at the legal rate from the date of filing of the complaint on March 14, 1979 until fully paid; chanrobles virtual law library b. the sum of P100,000.00 as actual and compensatory damages in both causes of action; chanrobles virtual law library c. the sum of P350,000.00 as moral damages in both causes of action; chanrobles virtual law library d. the sum of P150,000.00 as exemplary damages in both causes of action; chanrobles virtual law library e. the sum equivalent to 25% percent of the total claims involved in all the causes of action in the complaint as attorney's fees; chanrobles virtual law library f. to pay the expenses of litigation and costs of suit. On May 2, 1979, petitioner Azul, as yet unaware of the decision, filed a motion to lift the order of default. Together with the motion, he also filed his answer.chanroblesvirtualawlibrary chanrobles virtual law library On May 7, 1979, the decision adverse to the petitioner was received by his counsel.chanroblesvirtualawlibrary chanrobles virtual law library On June 6, 1979, the petitioner filed a motion for reconsideration or new trial.chanroblesvirtualawlibrary chanrobles virtual law library

On July 20, 1979, the court issued an order denying the motion to lift the order of default followed by another order on July 24, 1979 denying the motion for reconsideration or new trial.chanroblesvirtualawlibrary chanrobles virtual law library On August 1, 1979, the petitioner filed a notice of appeal, appeal bond, and a motion for extension of time to file his record on appeal.chanroblesvirtualawlibrary chanrobles virtual law library On August 3, 1979, the respondent court denied the motion for extension of time to file record on appeal stating that the motion was filed late. The petitioner asked that this denial be reconsidered because the decision was actually received on May 7, 1979. The petitioner explained that the date "May 5, 1979" given as the date of receipt was a clerical error and, therefore, the motion for extension of time to file record on appeal was filed within the reglementary period.chanroblesvirtualawlibrary chanrobles virtual law library On August 7, 1979, the court reconsidered its earlier denial and stated, "while the instant motion is not sufficiently meritorious, if only to give the defendant a final chance to ventilate his case on appeal and in the interest of justice, said defendant is given ten (10) days from receipt of this order within which to file his record on appeal.chanroblesvirtualawlibrary chanrobles virtual law library The petitioner filed his record on appeal on August 21, 1979. The court approved it on August 27, 1979. However, acting on an August 30, 1979 opposition filed by respondent Tecson, the court on August 31, 1979 issued an order setting aside its August 27, 1979 order approving the record on appeal. On September 11, 1979 the respondent court issued the order dismissing the appeal.chanroblesvirtualawlibrary chanrobles virtual law library We agree with the petitioner that he was denied due process. The constitutional provision on due process commands all who wield public authority, but most peremptorily courts of justice, to strictly maintain standards of fundamental fairness and to insure that procedural safeguards essential to a fair trial are observed at all stages of a proceeding.chanroblesvirtualawlibrary chanrobles virtual law library From the earliest inception of constitutional government in our country, the concepts of notice and hearing have been fundamental. A fair and enlightened system of justice would be impossible without the right to notice and to be heard. The emphasis on substantive due process and other recent ramifications of the due process clause sometimes leads bench and bar to overlook or forget that due process was initially concerned with fair procedure. Every law student early learns in law school the definition submitted by counsel Mr. Webster in Trustees of Dartmouth College v. Woodward (4 Wheat. 518) that due process is the equivalent of law of the land which means "the general law; a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial ... that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society." chanrobles virtual law library A sporting opportunity to be heard and the rendition of judgment only after a lawful hearing by a coldly neutral and impartial judge are essential elements of procedural due process.chanroblesvirtualawlibrary chanrobles virtual law library

We had occasion to emphasize in Santiago v. Santos (63 SCRA 392), which, unlike the case before us now, was only a summary action for ejectment that: In an adversary proceeding, fairness and prudence dictate that a judgment, based only on plaintiff's evidence adduced ex parte and rendered without hearing defendant's evidence, should be avoided as much as possible. In order that bias may not be imputed to the judge, he should have the patience and circumspection to give the opposing party a chance to present his evidence even if he thinks that the oppositor's proofs might not be adequate to overthrow the case for the plaintiff. A display of petulance and impatience in the conduct of the trial is a norm of conduct which is inconsistent with the "cold neutrality of an impartial judge". It is true that a party should be vigilant of his rights. It may be argued that when the petitioner's counsel asked for a fifteen (I 5) day extension from April 11, 1979 to file his answer, it was imprudent and neglectful for bum to assume that said first extension would be granted. However, the records show that Atty. Fernando P. Camaya personally went to the session hall of the court with his motion for postponement only- to: be informed that Presiding Judge Ulpiano Sarmiento had just retired but that his motion would be considered "submitted for resolution." Since the sala was vacant and pairing judges in Quezon City are literally swamped with their own heavy loads of cases, counsel may be excused for assuming that, at the very least, lie had the requested fifteen (15) days to file his responsive pleading.chanroblesvirtualawlibrary chanrobles virtual law library It is likewise inexplicable why Judge Lino Anover, who had not permanently taken over the sala vacated by the retired judge, should suddenly rule that only a five-day extension, would be allowed. And to compound the petitioners problems, the order was sent by mail and received only twelve (12) day later or after the five-day period. Before the much publicized Project Mercury of the Bureau of Posts, a court should have known that court orders requiring acts to be done in a matter of days should not be sent by mail. Meanwhile, the petitioner was declared in default. The motion to declare defendant in default is dated April 17, 1979. No copy was furnished the petitioner. It was acted upon on April 18, 1979, the very first day in office of the respondent judge in Quezon City.chanroblesvirtualawlibrary chanrobles virtual law library Jurisprudence on default judgments is clear and abundant. Our ruling in Amante v. Sunga (64 SCRA 192) is appropriate: In the attendant circumstances, We cannot perceive how the interest of justice was served and promoted by the precipitate action of the trial court. A default judgment does not pretend to be based on the merits of the controversy. Its existence is justified by expediency. It may, however, amount to a positive and considerable injustice to the defendant. The possibility of such serious consequences necessarily requires a careful examination of the circumstances under which a default order was issued. And when no real injury would result to the interests of the plaintiff by the reopening of the case, the only objection to such action would, therefore, be solely on a technicality. On such an infirm foundation, it would be a grievous error to sacrifice the substantial rights of a litigant. For the rules should be liberally construed in order to promote their objective in assisting the parties in obtaining just, speedy and inexpensive determination of their cases.

Shortly afterwards, the often cited case of Lim Tanhu v. Ramolete (66 SCRA 425) reiterated the same principle: After careful scrutiny of all the above-related proceedings in the court below and mature deliberation, the Court has arrived at the conclusion that petitioners should be granted relief, if only to stress emphatically once more that the rules of procedure may not be misused and abused as instruments for the denial of substantial justice. A review of the record of this case immediately discloses that here is another demonstrative instance of how some members of the bar, availing of their proficiency in invoking the letter of the rules without regard to their real spirit and intent, succeed in inducing courts to act contrary to the dictates of justice and equity, and, in some instances, to wittingly or unwittingly abet unfair advantage by ironically camouflaging their actuations as earnest efforts to satisfy the public clamor for speedy disposition of litigations, forgetting an the while that the plain injunction of Section 2 of Rule 1 is that the "rules shall be liberally construed in order to promote their object and to assist the parties in obtaining" not only 'speedy' but more imperatively, "just . . . and inexpensive determination of every action and proceeding." We cannot simply pass over the impression that the procedural maneuvers and tactics revealed in the records of the case at bar were deliberately planned with the calculated end in view of depriving petitioners and their co-defendants below of every opportunity to properly defend themselves against a claim of more than substantial character, considering the millions of pesos worth of properties involved as found by respondent judge himself in the impugned decision, a claim that appears, in the light of the allegations of the answer and the documents already brought to the attention of the court at the pre-trial, to be rather dubious. What is most regrettable is that apparently, all of these alarming circumstances have escaped respondent judge who did not seem to have hesitated in acting favorably on the motions of the plaintiff conducive to the deplorable objective just mentioned, and which motions, at the very least, appeared to be of highly controversial merit, considering that their obvious tendency and immediate result would be to convert the proceedings into a one-sided affair, a situation that should be readily condemnable and intolerable to any court of justice. The defendant's failure to answer on time was excusable. Moreover, the lower court was presented with defenses which, on their face, appeared to warrant a setting aside of the default order and a full-fledged hearing where both parties could present their respective evidences. The petitioner stated: 11. That defendant has good and valid defenses consisting of: a) I did not borrow the huge sum of THREE HUNDRED NINETY ONE THOUSAND EIGHT HUNDRED TWENTY TWO PESOS & 781100 (P391,822.78) from plaintiff Rosalinda Tecson; chanrobles virtual law library b) I did not issue to Rosalinda Tecson the receipt mentioned in par. 8 of her complaint; chanrobles virtual law library c) That the same receipts mentioned in par. 8 of her complaint did not state that sums of money stated on the face of these receipts were received as loan, in fact it does not appear on the face of the receipts for what purpose the said money were allegedly received; chanrobles virtual law library

d) That the checks she mentioned in par. 8 were issued by her and encashed by her which is very unnatural for a person who is lending money to another; chanrobles virtual law library e) That there is pending between Rosalinda Tecson and myself Civil Case No. 113565 of the Court of First Instance of Manila entitled "RIZAL COMMERCIAL BANKING CORPORATION versus PEDRO M. AZUL, ROSALINDA P. TECSON and PURITA DE CASTRO," where the said amount of THREE HUNDRED NINETY ONE THOUSAND EIGHT HUNDRED TWENTY TWO PESOS & 78/100 (P391,822.78) and in addition the same amount of ONE HUNDRED FORTY ONE THOUSAND SEVEN HUNDRED THIRTY PESOS & 20/100 (P141,730.20) mentioned in pars. 8 and 9 of plaintiff's complaint are the subject matter of compulsory cross- claim between the said parties; chanrobles virtual law library f) Plaintiff was never authorized to withdraw, collect and receive the checks whose face value amounted to ONE HUNDRED FORTY ONE THOUSAND SEVEN HUNDRED THIRTY PESOS & 20/100 (P 141,730.20) mentioned in par. 9 of her complaint; chanrobles virtual law library g) Plaintiff was never authorized to endorse and encash the checks mentioned in par. 9 of her complaint; chanrobles virtual law library h) Plaintiff up to this time was not able to show any authority authorizing her to withdraw, receive and endorse checks intended for me; chanrobles virtual law library i) The estafa case, I.S. 78-20883, I filed against plaintiff before the City Fiscal's Office of Quezon City is valid and fully supported by a document and in fact, it was filed with and was endorsed by the authorities at Camp Crame after an investigation was conducted, wherein plaintiff Rosalinda Tecson was given the opportunity to present evidence; chanrobles virtual law library j) That I filed the said estafa case in the exercise of my right and within legal bounds; 12. That, if given the opportunity to present my evidence before this Court, I would be able to prove my defendant and support them with sufficient documentary and oral evidence; that I need only about three (3) hours to present my evidence in support of these defenses; chanrobles virtual law library 13. Attached to this motion is an affidavit of merits as required by the Rules of Court. The private respondent contends that the default judgment has become final and executory and may no longer be set aside. As in the Lim Tanhu case, we cannot simply pass over the impression that the procedural maneuvers and tactics revealed in the records of the case at bar were deliberately planned with the calculated end in view of depriving petitioners of an opportunity to defend themselves, not only against the claim of P250,092.55 but damages and attorney's fees quadruple that amount and of the right to elevate the decision to a higher court.chanroblesvirtualawlibrary chanrobles virtual law library The petitioner cryptically refers to an "unseen hand" orchestrating proceedings. His counsel, Atty. Camaya, went to court with a motion for extension of time to file answer. Instead of being informed that even with the retirement of the presiding judge, he had only five (5) days to answer, he was told to

file the motion and consider it submitted. The order granting five days extension was mailed with the near certain knowledge he would not get it on time and after petitioner's being knocked out by an order declaring him in default, there was the well-founded "hope that procedural mistakes along the way will bury forever the presence of an irregularity." chanrobles virtual law library The fears of the petitioner turned out to be justified, His counsel fell into some procedural lapses as the respondent's counsel ably blocked every attempt to set aside the default judgment and keep it from becoming final.chanroblesvirtualawlibrary chanrobles virtual law library Not only was the petitioner not furnished a copy of the motion to declare him in default but no time and date of hearing were fixed. The motion is dated April 17, 1979. It was granted on April 18, 1979. On April 19, 1979, evidence was presented ex-parte before the branch clerk of court. About one week later, the decision was rendered. In addition to the principal claim of P250,092.55, the court awarded interest at the legal rate until paid, P600,000.00 in damages, and P237,523.14 attorney's fees for counsel whose most difficult work up to that point was preparing the complaint and the motion to declare the defendant in default and presenting evidence ex-parte before the branch clerk of court.chanroblesvirtualawlibrary chanrobles virtual law library The July 24, 1979 order of the lower court denied the petitioner's motion for reconsideration or new trial on the ground that it is "pro forma". Even a cursory appraisal of the motion will indicate that it is far from pro forma. The motion discusses in seven (7) typewritten legal size pages why the defendant's failure to file responsive pleading should be excused on grounds of excusable mistake and negligence and why the default judgment should be deemed null and void. The lower court which had just awarded extravagantly liberal damages in a default judgment should have given better reasons for rejecting the motion instead of relying on the conventional finding of a "pro forma" presentation.chanroblesvirtualawlibrary chanrobles virtual law library On August 1, 1979, the petitioner filed a notice of appeal and a motion for extension of time to file record on appeal. The lower court denied the motion for extension of time to file record on appeal on August 3, 1979 on the ground that it was filed two days late. Upon a motion for reconsideration explaining a typographical error which mistakenly indicated that a decision actually received on May 7 was received on May 5, the court granted ten (10) days extension to file the record on appeal only to reverse itself when on September 11, 1979, it granted the respondent's motion to dismiss appeal.chanroblesvirtualawlibrary chanrobles virtual law library The private respondent capitalizes on procedural errors allegedly committed by the petitioner's counsel after he failed to file his answers within the given five-day period. Counsel has explained the delays but without going into the merits of the explanations, we find the delays insufficient reason to warrant our countenancing the denial in this case and the disregard of our many admonitions for courts to be wary and reluctant in deciding cases through default judgments.chanroblesvirtualawlibrary chanrobles virtual law library The petitioner alleges that the decision awarding P1,187,615.69 to the private respondent is not supported by the facts elicited during the hearing ex-parte before the branch clerk of court. The merits

of the collection case should be determined after both petitioner and respondent are afforded full opportunity to present their respective evidences.chanroblesvirtualawlibrary chanrobles virtual law library The petitioner's mention of an "unseen hand" orchestrating the proceedings in this case should also be referred to the office of the Court Administrator for investigation and appropriate action.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the petition for certiorari is hereby GRANTED. The respondent court's order dated March 19, 1979 issuing a writ of preliminary attachment, the order dated April 18, 1979, declaring the petitioner in default, the decision dated April 27, 1979, the order dated July 20, 1979 denying the motion to lift the order of default, the order dated July 24, 1979 denying the motion for reconsideration or new trial, the order dated Septemeber 11, 1979 dismissing the appeal, and the order dated October 29, 1979 issuing a writ of execution to enforce the court's judgment are SET ASIDE as NULL and VOID. The appropriate branch of the Regional Trial Court at Quezon City is ordered to ADMIT the ANSWER filed by the petitioner and CONDUCT trial on the merits. The Acting Court Administrator is ordered to conduct and INVESTIGATION as abovestated.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. Teehankee, (Actg. C.J.), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur. Republic of the Philippines SUPREME COURT Manila G.R. No. Nos. L-69640-45 April 30, 1985 MIGUEL P. PADERANGA, AS CITY MAYOR OF GINGOOG CITY, Petitioner, vs. HON. JUDGE CESAR R. AZURA, AS PRESIDING JUDGE OF THE REGIONAL TRIAL COURT, BRANCH XXVI, 10th JUDICIAL REGION MEDINA, MISAMIS ORIENTAL, Respondent. RESOLUTION MELENCIO-HERRERA, J.: FIRST DIVISION chanrobles virtual law library chanrobles virtual law library In this Petition for Certiorari, petitioner, as City Mayor of Gingoog City, seeks to annul respondent Judge's Order denying the Motion for Inhibition which he (petitioner) had filed.chanroblesvirtualawlibrary chanrobles virtual law library

The grounds advanced for the inhibition of respondent Judge from hearing, deciding and issuing Orders in any of the seven pending cases 1 in his Court wherein the City of Gingoog, its officials, including petitioner, are parties, may be summarized as follows: 1. Loss of trust and confidence in the competence and impartiality of respondent Judge, particularly in view of the administrative complaints filed against him by petitioner and others before this Court.chanroblesvirtualawlibrary chanrobles virtual law library 2. Entertaining suits assailing the validity of auction sales of tax delinquent properties by issuing restraining orders enjoining the City Treasurer of Gingoog City from proceeding with the auction sales of said properties when under Sec. 64 and 83 of P.D. 464, the remedy to stay execution of auction sales of tax delinquent properties is by paying the tax, pursuant to Sec. 74 of P.D. 464, supra, and not by issuance of restraining orders; chanrobles virtual law library 3. Bias, oppressive dispensation of justice, and abuse of his power of contempt in ordering the arrest of petitioner and the members of the Sangguniang Panglunsod of Gingoog City and imposing upon them an excessive fine of P10,000.00 and an excessive bond of P50,000.00 when the claim for salary was only for P5,000.00, and by sensationalizing their arrest with the aid of the Provincial Commander at Campa Alagar, Cagayan de Oro City, as if they were hardened criminals and fugitives from justice, for the purpose of embarrassing them before the public.chanroblesvirtualawlibrary chanrobles virtual law library 4. Issuing of Orders against the interests of the City of Gingoog. Respondent Judge denied the Petition for Inhibition on the ground that loss of trust and confidence by petitioner in his neutrality is unfounded, notwithstanding the administrative charges filed against him, and that the plea for inhibition was prompted more because the "City Attorney (petitioner's counsel) appears to have persisted in his grotesque arguments and haughty conduct in his subsequent pleadings which already constitute direct contempt for which he may be cognizant of his inevitable punishment, and for which reason he now entertains the resultant fears from his own indiscretions, to appear before this presiding judge." chanrobles virtual law library Petitioner assails said Order denying inhibition for having been issued despotically, whimsically, and with grave abuse of discretion amounting to lack of or in excess of jurisdiction. On the other hand, respondent Judge, in his Comment filed pursuant to this Court's requirement, states: 1. He merely followed the provisions of Sec. 1, Rule 137, Rules of Court, in resolving petitioner's Motion for Inhibition, there being no legal ground for him to inhibit himself from proceeding to hear any of the several cases therein enumerated; chanrobles virtual law library 2. In regard to the tax cases, he submits that if, indeed, he has no jurisdiction, the proper remedy is not a petition for inhibition but an action for prohibition in accordance with Sec. 2, Rule 65; chanrobles virtual law library

As regards the cases of Barro v. City of Gingoog and Rafael Rodriguez v. City of Gingoog, he had rendered the corresponding decisions which had already attained finality for lack of appeal; although in the Barro case, a petition for review is pending before the IAC; chanrobles virtual law library In the case of Ayensa v. Paderanga involving a public high school teacher, who was not paid his salaries although he was continually rendering services, he had ordered petitioner to pay the aforesaid salaries, but since the Order was defied, petitioner and other officials were cited for contempt pursuant to the Rules. Considering the antagonistic positions taken by the parties in their respective pleadings, and, particularly, the seriousness of the imputations made by petitioner, which prompted him and others to file administrative charges against respondent Judge, we advert to this Court's guidelines on the matter of inhibition in Pimentel vs. Salanga, L-27934, 21 SCRA 160 [1967], prescribing as follows: All the foregoing notwithstanding, this should be a good occasion as any to draw attention of all judges to appropriate guidelines in a situation where their capacity to try and decide fairly and judiciously comes to the fore by way of challenge from any one of the parties. A judge may not be legally prohibited from sitting in a litigation But when suggestion is made of record that he might be induced to act in favor of one party or with bias or prejudice against a litigant arising out of circumstances reasonably capable of inciting such a state of mind, he should conduct a careful self- examination. He should exercise his discretion in a way that the people's faith in the courts of justice is not impaired. ... (Emphasis supplied) The reminder is also apropos that next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge ... 2 chanrobles virtual law library ACCORDINGLY, respondent Judge is hereby ordered to inhibit himself from hearing the cases enumerated in paragraph 4 of the Petition involving the City of Gingoog or its officials, including petitioner. The venue of said cases is hereby transferred to Cagayan de Oro City each to be assigned by raffle to the Regional Trial Courts thereat.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. Teehankee, (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Alampay JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-49360 December 14, 1979 FILEMON DAVID, Petitioner, vs. HON. GREGORIO U. AQUILIZAN, FELOMENO JUGAR and RICARDO JUGAR, Respondents.

SANTOS, J.: Petition for certiorari with prayer for a writ of preliminary injunction filed November 27, 1978 to set aside the decision dated September 29, 1978 of the Court of Agrarian Relations (CAR), 16th Regional District, Branch II at Cotabato City, presided by Judge Gregorio U. Aquilizan. 1 chanrobles virtual law library We resolved on April 10, 1979, finding the verified petition sufficient in form and substance, to require respondents to answer, not to move to dismiss. 2 On June 9, 1979, respondent Judge after an extension of 20 days, filed an answer. 3 Private respondents did not answer notwithstanding due and proper notice. 4 chanrobles virtual law library The factual and procedural antecedents which gave rise to this petition follow.chanroblesvirtualawlibrary chanrobles virtual law library Earlier or on February 17, 1976, the herein private respondents, Felomeno and Ricardo Jugar brothers, filed against Felimon C. David, herein petitioner, a "Petition for Reinstatement" in the CAR, 15th Regional District, Branch II, Cotabato City.chanroblesvirtualawlibrary chanrobles virtual law library They alleged, inter alia, that sometime in 1971, they were installed as share tenants by petitioner over separate portions of the latter's landholding situated at Polomolok, South Cotabato, each portion having a seeding capacity of two (2) hectares, more or less, their sharing agreement being 50-50% of the net produce; that the parcels they were cultivating are devoted to the production of corn crops, the produce per hectare being 60 to 70 cavans in corn cobs; that sometime in the middle part of 1973, private respondents were no longer allowed to continue their cultivation of the subject lots as petitionerlandholder prohibited them from doing so and took possession of said lots for no reason at all; that the Department of Agrarian Reform (DAR) Team Office at General Santos intervened for the immediate reinstatement of private respondents to their respective portions, but such intervention was to no avail as petitioner-landholder refused and still refuses to reinstate them, and that because of such unlawful act, private respondents suffered and will continue to suffer damages and litigation expenses. 5 chanrobles virtual law library In herein petitioner's answer, as respondent below, he denied that herein private respondents were his tenants. He claimed that "... Ricardo David (should be Jugar) who was then the tractor driver of respondent (now petitioner herein) was given additional incentive to work on a one hectare portion of respondent's land which he surrendered after resigning as tractor driver and after he worked with the Dolefil and as a farm tenant of his father; Felomeno Jugar truly worked with the respondent (herein petitioner) on share basis until the petitioner Felomeno Jugar (now private respondent) sold his working animals and resumed his faith-healing and later worked, as in fact to the present is working, with his father ..." 6 He further averred that the average harvest per hectare is not only 60 to 70 sacks of corn on cobs but if properly cultivated the land would easily yield no less than 120 sacks of corn on cobs at 4 cans each sack; that the truth is that private respondents voluntarily surrendered their

landholdings as follows: "...Ricardo, in September, 1972, after he resigned as tractor driver of respondent (now petitioner), due to ill health; and later on as farm tenant of his father; Felomeno Jugar voluntarily surrendered his landholdings after he sold his working animals, and later, he continued his religious faith healing occupation and as farm tenant of his father." 7 chanrobles virtual law library As affirmative defense, petitioner alleged that private respondents lodged their petition with the DAR, now Ministry of Agrarian Reform (MAR), and after a thorough investigation, the Hearing Officer of said Department, Guillermo Tanawit, rendered a Report (DAR ARDO # 11-38-000, Koronadal, South Cotabato) on April 12, 1976 containing the following findings and recommendation, to wit: There was no dispute that Ricardo was installed on a 1.0 hectare land, so also there was no dispute that Felomeno Jugar was installed on 2.0 hectare land. The allegation however, that both were "illegally ejected" is belied by the admission in their position paper termed as memorandum that the landowner ONLY BORROWED their land for a short period to time, Noted with all aspect that Ricardo even employed himself with the DOLE which only but confirm the stand of voluntary surrender by his landlord. Not only that he even worked on his father's land He claimed that he resigned as a tractor driver because he was sick and then later claimed that he was reinstalled on another 2.0 hectare augmenting his 1.0 hectare into 2.0 hectare as claimed. But the fact remain thereafter he relinquished his fights thereat because of sickness and work on his father's land. So also with his brother Felomeno Jugar he claimed that his lot of 2.0 hectare was only borrowed by his landlord the latter part of 1975 because of their (David) debt with the bank, and work with his father. Taken as a whole, there could not be unlawful ejectment contrary to PD No. 316 dated October 26, 1973, because during that particular time, Ricardo is either working with the Dole, supplemented by his farming with his father and Felomeno Jugar with his laymen (religious) activities supplemented with his farming with his father's land. The above foregoing, the undersigned observation (sic), when the conducted this hearing, can not but penned this dictum that there was no unlawful ejectment but indeed petitioners had summarily surrendered their landholdings separately, on their own will and without any duress (unlawful), Accordingly, for want of merit, the case is hereby dropped from the undersigned roster of legal (mediation) case. 8 (Emphasis supplied.) On June 29, 1978, after the issues were joined, the respondent Judge issued an order directing the Department (now Ministry) of Agrarian Reform "... to cover the land in area under operation Land Transfer (sic) ..." This order is worded as follows. When CAR Case No. 43-South Cot. '76 was called, plaintiffs and counsel appeared as well as the defendant and counsels.chanroblesvirtualawlibrary chanrobles virtual law library

In view of the recent ruling of the Court of Appeals with respect to land devoted primarily to rice and/or corn and as of October 21, 1972, said land is automatically covered by operation Land Transfer.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, in view of the revelation gathered in open court, the Department of Agrarian Reform is hereby directed to cover the land in area under operation Land Transfer. 9 chanrobles virtual law library Three months later, or on September 29, 1979, respondent Judge without conducting any hearing rendered judgment for private respondents and against herein petitioner finding that "...plaintiffs Ricardo and Felomeno, both surnamed Jugar (now private respondents) were tenants of defendant Filemon C. David (petitioner herein) at the time PD 27 was promulgated on October 21, 1972," 10 and thereafter declared them "owners" thereof. Thus WHEREFORE, premises considered judgment is rendered: chanrobles virtual law library 1. Plaintiffs (private respondents herein) are hereby 'deemed owners' of the land they were cultivating when P.D. 27 was decreed; 2. The Ministry of Agrarian Reform is hereby directed to cover the land point of controversy under Operation Land Transfer; chanrobles virtual law library 3. Directing the the provincial Commander, Philippine Constabular of South Cotabato to install peacefully plaintiffs to the land covered by operations land 'Transfer after the Ministry of Agrarian Reform shall have Identified and sketched them, in conformity with the DND/DAR Memorandum Agreement of September 18, 1975.chanroblesvirtualawlibrary chanrobles virtual law library 4. Let a copy of this Decision be furnished the Hon. Secretary, Ministry of Agrarian Reform for his guidance and easy reference for similar case.chanroblesvirtualawlibrary chanrobles virtual law library No pronouncement as to cost or damages. 11 On the bases of the foregoing tactual and procedural antecedent petitioners seek to annul and set aside the aforesaid order and decision of respondent Judge Aquilizan on the grounds that: (a) he was denied due process of law; (b) the respondent Judge has no jurisdiction over the instant case, jurisdiction being legally lodged with the Ministry of Agrarian Reform: (c) assuming respondent Judge has jurisdiction thereof, the order of June 29, 1978 has already become final and no new decision novating the same may be rendered; and (d) the findings of facts, arrived at without hearing, are contrary to the evidence (sic). 12 chanrobles virtual law library In his Answer, respondent Judge Aquilizan did not deny the lack of hearings alleged in the petition, but interposed the defense that the subject decision has already become "... final and executory after the lapse of the period for the perfection of an appeal ..." and "... there is no showing that an appeal was brought to the Appellate Court in accordance with provisions of PD 946 and the Uniform Rules of Procedure of the Court of Agrarian Relations." 13 That instead, the respondent (should be petitioner) filed the instant "Certiorari with Preliminary Injunction' to review the "Decisions of the Honorable

Court of Agrarian Relations dated September 29, 1978", and "...that certiorari cannot be substituted for an appeal ..." 14 chanrobles virtual law library On June 22, 1979, We considered the case submitted for decision.chanroblesvirtualawlibrary chanrobles virtual law library This petition is quite obviously invested with merit. In the light of the foregoing factual. and procedural milieu and since, admittedly, respondent judge did not conduct any hearing in the case prior to issuance of the challenged decision, the ineluctible conclusion is that the challenged decision is null and void for want of due process. The following requisites, as set forth in a leading case before the 1935 Constitution took effect, must concur for procedural due process in civil cases: "(1) There must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an opportunity to be heard; and (4) judgment must be rendered upon lawful hearing." 15 Thus, it is well-settled rule that "no one shall be personally bound until he has had a day in court", by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity lacks all the attributes of a judicial determination; it is a judicial usurpation and oppression, and can never be upheld where justice is justly administered. (Ong Su Han vs. Gutierrez David, 76 Phil. 546, etc.; Moran Comments on the Rules of Court, Vol. 1, 1957 ed., p. 476). And it has been held that a final and executory judgment may be set aside with a view to the renewal of the litigation when the judgment is void for lack of due process of law. (Moran, Comments on the Rules of Court, supra, p. 523; Banco Espaol-Filipino vs. Palanca, 37 Phil. 921 ). 16 Being null and void from its inception, the decision sought to be set aside does not exist in the eyes of the law because it is "as though it had not been done. 17 In legal contemplation, it is no judgment at all. 18 "By it, no rights are divested. From it, no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void. ..." 19 It may be attacked directly or collaterally, and the action therefor may be brought even after the time for appeal or review has lapsed. The judgment is vulnerable to attack even when no appeal has. 20 Hence, such judgment does not become final in sense of depriving a party of his right to question its validity. 21 chanrobles virtual law library WHEREFORE, petition is GRANTED and the challenged order and decision are hereby SET ASIDE. Respondent judge is hereby directed to conduct appropriate proceedings in the case. This decision is immediately executory. No costs.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. Barredo (Chairman), Antonio, Aquino, Concepcion, Jr. and Abad Santos, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-37051 August 3l, 1977 ANITA U. LORENZANA, petitioner, vs. POLLY CAYETANO and COURT OF APPEALS, respondents. Desiderio P. Jurado for petitioner. Vicente L. Santiago for private respondent.

GUERRERO, J.: Appeal by certiorari from the judgment of the Court of Appeals in CA-G.R. No. 31082-R entitled "Polly Cayetano, Plaintiff-Appellant vs. Anita U. Lorenzana, et al., Defendants-Appellees" and from the resolution of the Court denying petitioner's motion for reconsideration. We find in this case a perfect example that proves the -validity of that classic legal dictum that a man's house is his castle where the wind may enter, the rain may enter but neither the King nor the King's men may enter without the consent of the owner. The records show that 'In 1958, petitioner filled n the Municipal Court of Manila ejectment cases for non-payment of rentals against her tenants occupying different stalls in that quonset hut situated in the San Lazaro Estate (corner of C.M. Recto St. and Quezpn Blvd., Manila, adjacent to the Bilibid Compound) with a floor area of 360 square meters. leased by her (which she afterwards purchased) from the Manila Railroad Company and later from the Bureau of Lands together with the use of the land north and wouth of the quonset hut with an area of 340 square meters. The private respondent, on the other hand, occupied the area north of the quonset hut which area was also leased by her from the Manila Railroad Company and subsequently from the Bureau of Lands, and on which her house stood. Hence, the areas occupied by the two principal protagonists are adjacent to each other. The ejectment. cases having been decided by the Municipal Court in favor of the petitioner, the same were appealed to the Court of First Instance of Manila, Branch I. The Court affirmed the decision of the municipal court and ordered the defendants-tenants to vacate the premises leased. Upon refusal of the tenants to vacate the premises, the court granted a partial execution of the judgment and on July 20, 1959, a writ of demolition was issued, specifically commanding the Sheriff of Manila "to demolish the premises subject of the above-name cases" (Record on Appeal, p. 4). Thereupon on July 27, 1959, Petitioner together with her counsel, Atty. Nereo Paculdo and Deputy Sheriff Jose L. Cruz proceeded and entered the premises of the respondent and in spite of her protests

that she was not a party to the ejectment cases in which the demolition order was secured and that her premises was not subject of said ejectment cases, they destroyed the latter's fence including flower pots trellises and electric installations and carted away the materials thereof and built another fence 5 meters into the premises of the respondent, boring holes into the cemented garden or patio of her house. On August 3, 1959, respondent presented to the court a motion to declare petitioner, her counsel and the sheriff guilty of contempt; that they be punished and held liable in damages to the petitioner. The presiding judge held the motion in abeyance until the decision of the court in the ejectment cases shall have been rendered. Acting upon the petitioner's ex-parte motion and urgent motion for demolition in the two appealed ejectment cases, Civil Case No. 29664 and Civil Case No. 29665, the court on September 28, 1959 ordered that "a writ of demolition be issued ordering the Sheriff of Manila or any of his deputies to demolish any or all improvements erected and existing on the parcel of land subject of the aboveentitled cases. which consists of an area of about 700 square meters." (Record on Appeal, p. 55). The writ of demolition was issued by the Sheriff on September 30, 1959. Upon procurement of this order or demolition, petitioner, together with her counsel and the deputy sheriff proceeded once more to respondent's premises on October 1, 1959 and moved the fence where it was illegally placed by them on July 27, 1959. On the same day, October 1, 1959, respondent filed an urgent motion for the suspension of the execution of the writ of demolition, which motion was denied by the court the next day, October 2, 1959. The records further establish that on November 27, 1959, petitioner, her lawyer, Atty. Paculdo, and Sheriff Cruz went back and moved the fence 1 Meter more into the premises of the respondent; that on February 19, 1960, the respondent filed an ex-parte motion to withdraw the petition for contempt on the ground that "conferring with Judge Bayona after this petition was heard, the petitioner was informed that not being a party to the above-numbered cases, she is like an intruder to act on her petition." (Record on Appeal, p. 80). On October 1, 1959, the respondent Polly Cayetano filed in the Court of First Instance of Manila, Civil Case No. 42001 against the petitioner Anita U. Lorenzana, Atty. Nereo J. Paculdo and Deputy Sheriff Jose L. Cruz for damages with mandatory injunction. The defendants therein filed a motion to dismiss, which was opposed by the plaintiff, and the Court, Branch XVII, denied on December 19, 1959 the motion to dismiss and the petition for issuance of the writ of preliminary injunction. The defendants filed their answers. Under date of March 9, 1962, the Court issued the Decision dismissing the complaint of the plaintiff as well as the counterclaim of the defendants Anita U. Lorenzana and Atty. Nereo J. Paculdo for lack of sufficient evidence. A motion for reconsideration was filed by the plaintiff but denied by the Court. Not satisfied with the Decision of the Court, Polly Cayetano appealed to the Court of Appeals. The Court of Appeals reversed the decision appealed from, and ordered "defendant-appellee Lorenzana to restore to appellant the possession of the property invaded and occupied by her as shown in Exh. L-1 to L-4; to put back appellant's fence and other valuable improvements in their place before the writ of demolition

was served; ordering defendants, Lorenzana and Cruz, to pay jointly and severally to the plaintiffappellant the sum of P5,500.00 as actual and moral damages, and pay the costs, except defendant, Paculdo." The above Decision is now sought to be reviewed in the instant petition for certiorari upon the following assignment of errors: 1. That the Court of Appeals erred in holding that the writ of demolition issued by Branch I of the Court of First Instance of Manila presided over by Judge Bayona could not be legally effected against respondent Polly Cayetano; II. That the Court of Appeals erred in holding that the private respondent's failure to pursue her remedy before a higher court did not to amount a waiver of her rights; III. The Court of Appeals erred in holding in effect that a writ of execution and an order of demolition can be collaterally attacked in an action specifically brought for recovery of damages; and IV. The Court of Appeals erred in holding that the issuance of the writ of demolition by Judge Bayona was in violation of Section 14, Rule 39. This case hinges on the legal effects of the writs of demolition issued in the ejectment cases wherein the respondent was not a party thereto . The writs were issued by virtue of the judgment rendered by the Court of First Instance of Manila (Branch I), the dispositive portion of which states, as follows: "WHEREFORE, judgment is rendered condemning the defendants ... to vacate the premises; ordering herein defendants... to pay rent to plaintiff ... plus attorney's fees and costs." The petitioner contends that the respondent having voluntarily appeared before the court and invoked its jurisdiction seeking affirmative relief by filing on August 3, 1959, a petition to declare Lorenzana, Atty. Paculdo and Sheriff Cruz in contempt and holding them liable in damages, and by filing on October 1, 1959, an urgent petition for the suspension of the execution of the writ of demolition, she could no longer contest the efficacy of the writ. There is no merit to this contention and We find no error in the ruling of the Court of Appeals that the writ of demolition could not be legally effected against the respondent. It must be noted that respondent was not a party to any of the 12 ejectment cases wherein the writs of demolition had been issued; she did not make her appearance in and during the pendency of these ejectment cases. Respondent only went to court to protect her property from demolition after the judgment in the ejectment cases had become final and executory. Hence, with respect to the judgment in said ejectment cases, respondent remains a third person to such judgement, which does not bind her; 1 nor can its writ of execution be enforced against her since she was not afforded her day in court in said ejectment cases. 2 The vital legal point here is that respondent did not derive her right or interest from the defendantstenants nor from the plaintiff-landlord (the herein petitioner) but from the Bureau of Lands from which she had leased the property. She is neither a party nor successor in interest to any of the litigants in the ejectment cases. We also find no merit in the contention of the petitioner that respondent having been duly heard by the Court, she was not deprived of her day in court and was accorded the due process of law.

It cannot be said that the constitutional requirements of due process were sufficiently complied with because the respondent had been duly heard. Indeed, respondent was heard but simply hearing her did not fulfill the basic conditions of procedural due process in courts. When respondent appeared before the court to protect and preserve her property, the Court had not lawfully acquired jurisdiction over the property of the respondent because the premises of the respondent was not included in the ejectment cases and the judgment in said cases could not affect her property, much less demolish the same. In the leading case of El Banco-Espa;ol-Filipino v. Palanca 3 cited in Macabingkil v. Yatco, et al., 4 We laid down the court's constitutional requirements of due process, thus As applied to judicial proceedings. . . it may be laid down with certainty that the requirements of due process is satisfied if the following conditions are present namely: (1) There must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceedings: (3) the defendant must be given an opportunity to be heard; and (4) judgment must be rendered upon lawful hearing. Respondent pursued various steps to protect her property from the invasion and encroachment of the petitioner, abetted by her counsel and the deputy Sheriff. She filed a motion for contempt; she protested to the Sheriff of Manila; she appealed to the Director of the Bureau of Lands; she filed an urgent motion to suspend the writ of demolition. Although the motions for contempt and for suspension wer heard by the court, such action s taken af ter the jugdgment had become final and executory did not make the respondent a party litigant in the ejectment cases. The respondent remained a stranger to the case and she cannot be bound by the judgment rendered therein, nor by the writs of execution and demolition issued in pursuance to said judgment. Intervening as a prejudiced owner of improvements being wrongly demolished merely to oppose such order of demolition upon learning that the said order was directed against premises not her own, is not the same as being a party to the suit to the extent of being bound by the judgment in the case where such order of demolition was issued. 5 Furthermore, it must be noted that said petitions were filed after the promulgation of the decision in the ejectment cases and while in the process of execution. lt. is not proper to speak of an intention in a case already terminated by final judgment .6 Respondent, not being bound thereby, may avail herself of the proper action afforded by Section 17, Rule 39 of the Revised Rules of Court which provides the proceedings where property levied upon is claimed by a third person, stating as follows: ...Tile officer is not liable for damages, for the taking or keeping of the property to any third-party claimant unless a claim is made by the latter- and unless an action for damages is brought by him against the officer within one hundred twenty (120) days from the date of the filing of the bond. But nothing herein contained shall prevent such claimant o any third person ffrom windicating his claim to the property by any proper action... (Emphasis supplied) Respondent acted within and exercised her right when she filed the proper action to vindicate her claim afforded to her by Sec. 17, Rule 39 of the Revised Rules of Court, against the instruders or trespassers before the Court of First Instance of Manila, Branch XVII, in Civil Case No. 42001 for dam with

mandatory injunction. If she did not insist on her motion for contempt which the court held in abeyance and was later withdrawn by her, if she did not appeal from the order of the court denying her motion to suspend the writ of demolition, such failure did not amount to a waiver of her right to pursue the proper action or remedy provided to her by the Rules of Court. It is of no moment that the respondent did not file a motion to quash the writ of execution or file a petition for relief under Rule 38 of the Revised Rules of Court or file a petition for certiorari and prohibition with a higher court after her petition to suspend the writ of demolition had been denied as suggested by petitioner. The law has specifically given her the remedies to vindicate her claim to the property. When the property of one person is unlawfully taken by another, the former has a right of action against the latter for the recovery of the property or for damages for the taking or retention, and he is entitled to his choice of these two remedies. 7 We find no legal compulsion for respondent to pursue the remedies suggested by the petitioner, for the rights of a third party claimant should not be decided in the action where the third-party claim has been presented, but in a separate action to be instituted by the third person. 8 In Queblar v. Gardu;o 9 this Court held that: Strictly speaking, the appeal interposed by the third-party claimant- appellant is improper, because she was not one of the parties in the action who were exclusively Venancio Queblar as plaintiff and Leonardo Gardu;o as defendant. Considering the provisions of said section 451 of the Code of Civil Procedure, as amended by Act No. 4108, the appealed order was not appealable. The appeal that should have been interposed by her, if the term "appeal" may properly be employed, is a separate reivindicatory action against the execution creditor or the purchaser of her property after the sale at public auction, or a complaint for damages to be charged against the bond filed by the judgment creditor in favor of the sheriff. In Potenciano v. Dineros, 10 We ruled that: We see no merit in the claim that the denial or dismissal of Potenciano's claim in the court below constitutes a bar to the present action. Potenciano, it is true, did not appeal, from the disapproval of his claim. But it should be borne in mind that appeal is not proper in such cases. (Queblar v. Gardu;o supra). As was said in that case, the appeal that should be interposed "if the term 'appeal' may properly be employed, is a separate reivindicatory action against the execution creditor or the purchaser of the property after the sale at public auction, or complaint for damages to be charged against the bond filed by the judgment creditor in favor of the sheriff." Such reivindicatory action is resurged to the thirdparty claimant by Section 15 (now 17) of Rule 39 despite disapproval of his claim by the court itself. (Planas v. Madrigal & Co., supra; Lara v. Bayona, L-7920, May 10, 1955), and it is the action availed by Potenciano in this case. The petitioner contends that a writ of execution and an order of demolition cannot be collaterally attacked in an action specifically brought for recovery of damages, and that said action for damages and mandatory injunction (Civil Case No. 42001) filed by the respondent with Branch XVII was nothing less than an action to review the validity of the order of demolition issued by Branch I in the ejectment cases which have long become final.

We are not in accord with this contention. The civil case filed by the respondent for damages and the restoration of the property destroyed aid her premises taken unlawfully under the writ of demolition was not brought to reverse, impugn or set aside the judgment in the ejectment cases but to declare that the writ of demolition should not have been applied to that portion of the land and the building occupied by her, as correctly stated by the Court of Appeals. To put it succinctly the judgment and the demolition orders were valid and binding to the tenants but not to the respondent and her property. Fundamentally, it is the wrongful execution of the judgment and the writ that is the basis of the claim for damages. If the judgment and the writs of execution and demolition were alleged in the complaint for damages, this was not necessarily a collateral attack on said processes of another branch of the Court but averments to prove the wrongful, illegal and unauthorized exercise of the writs; it is merely a statement of the legal basis which the sheriff exceeded, abetted by the petitioner. The contention of the petitioner that a branch of a Court of First Instance cannot interfere with or nullify decisions, orders or proceedings of another branch of the same court and therefore the writs of execution and demolition cannot be impugned is not exactly on all fours with and hence not applicable to the case at bar. The settled rule has been clearly laid down in Abiera v. Court of Appeals, 11 wherein the Court, after a review of the doctrines in Cabigao v. Del Rosario & Lim, 44 Phil. 192; Manila Herald Publishing Co., Inc., v. Ramos, 88 Phil. 94; Hacbang, et al. v. Hon. Clementino Diez, 8 SCRA 103 (May 30,1963) and National Power Corporation v. Hon. Jesus de Veyra 3 SCRA 646 (Dec. 22,1961), held that No court has power to interfere by injunction with the judgments or decrees of a court of concurrent or coordinate jurisdiction having equal power to grant the relief sought by injunction. For this doctrine to apply, the injunction issued by one court must interfere with the judgment or decree issued by another court of equal or coordinate jurisdiction and the relief sought by such injunction must be one which could be granted by the court which rendered the judgment or issued the decree. Under Section 17 of Rule 39 a third person who claims property levied upon on execution may vindicate such claim by action. A judgment rendered in his favor - declaring him to be the owner of' the property would not constitute interference with the powers or processes of the court which rendered the judgment to enforce which the execution was levied. If that be so and it is so because the property, being that of a stranger, is not subject to levy then an interlocutory order, such as injunction, upon a claim and prima facie showing of ownership by the claimant, cannot be considered as such interference either The right of a person who claims to be the owner of property levied upon on execution to file a thirdparty claim with the sheriff is not exclusive, and he may file an action to vindicate his claim even if the judgment creditor files an indemnity bond in favor of the sheriff to answer for any damages that may be suffered by the third-party claimant. By "action," as stated in the Rule, what is meant is a separate and independent action.

With respect to the fourth assignment of error, petitioner's contention appears to be quite tenable in that under See. 14, Rule 39 of the Revised Rules of Court which the Court of Appeals applied, the notice required before demolition of the improvements on the property subject of the execution, is notice to the judgment debtor, and not to a stranger or third party to the case like the private respondent herein. Nonetheless, the claim that the Court of Appeals misconstrued the aforecited Rule is as immaterial and inconsequential as the application of this legal provision is superflous and unnecessary for the affirmance of the Court's decision. The Manifestation filed by petitioner in the records dated June 1, 1977 with Annexes A, B, C and D, is Noted. IN VIEW OF ALL THE FOREGOING, the petition herein is dismissed, and the appealed judgment is affirmed, with costs against petitioner. SO ORDERED. Makasiar, Martin and Fernandez, JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-49711 November 7, 1979 ZAMBALES CHROMITE MINING CO., GONZALO P. NAVA, VIOLA S. NAVA, FEDERICO S. NAVA, PERLA NAVA, HONORATO P. NAVA, ALEJANDRO S. NAVA, PURIFICACION SISON, A. TORDESILLAS, GUIDO ADVINCULA, PEDRO ANGULO and TOMAS MARAMBA, petitioners-appellants, vs. COURT OF APPEALS, SECRETARY OF AGRICULTURE AND NATURAL RESOURCES, DIRECTOR OF MINES, GREGORIO E. MARTINEZ, ALEJANDRO MENDEZ, NICANOR MARTY, VICENTE MISOLES, GUILLERMO YABUT, ANDRES R. FIAGOY, MIGUEL A. MANIAGO, CASIMIRO N. EBIDO, ENRIQUE RIVERA, SEVERINO MIVA, ELENITO B. MARTINEZ, LUCAS EDURAIN, FELIMON ENCIO, EMILIO ILOCO, DIOSDADO MISOLA, ERNESTO VALVERDE, PABLO PABILONA, ARMANDO MINAS, BARTOLOME MARAVE and CECILIO OOVILLA, respondents-appellees. Tordesilla & Advincula for petitioners-appellants.chanrobles virtual law library Mariano M. Lozada for private respondents-appellees. -->

AQUINO, J.:

This is a mining case. The petitioners appealed from the second decision of the Court of Appeals, reversing its first decision and holding that it was improper from Benjamin M. Gozon, as Secretary of Agriculture and Natural Resources, to affirm his own decision as Director of Mines.chanroblesvirtualawlibrary chanrobles virtual law library The Court of Appeals further held that the trial court's judgment, confirming the Secretary's decision, should be set aside and that the Minister of Natural Resources should review anew the decision of the Director of Mines "and, thereafter, further proceedings will be taken in the trial court". The antecedental proceedings are as follows: chanrobles virtual law library (1) In Mines Administrative Case No. V-227, Director Gozon issued an order dated October 5, 1960 wherein he dismissed the case filed by the petitioners or protestants (Zambales Chromite Mining Co., Inc. or the group of Gonzalo P. Nava). In that case, they sought to be declared the rightful and prior locators and possessors of sixty-nine mining claims located in Santa Cruz, Zambales.chanroblesvirtualawlibrary chanrobles virtual law library On the basis of petitioners' evidence (the private respondents did not present any evidence and they filed a demurrer to the evidence or motion to dismiss the protest), Director Gozon found that the petitioners did not discover any mineral nor staked and located mining claims in accordance with law.chanroblesvirtualawlibrary chanrobles virtual law library In that same order, Director Gozon ruled that the mining claims of the groups of Gregorio Martinez and Pablo Pabilona, now the private respondents-appellees, were duly located and registered (pp. 224-231, Record on Appeal).chanroblesvirtualawlibrary chanrobles virtual law library (2) The petitioners appealed from that order to the Secretary of Agriculture and Natural Resources. While the appeal was pending, Director Gozon was appointed Secretary of Agriculture and Natural Resources. Instead of inhibiting himself, he decided the appeal, DANR Case No. 2151, on August 16, 1963 as it he was adjudicating the case for the first time. 'Thus, Secretary Gozon exercised appellate jurisdiction over a case which he had decided as Director of Mines. He acted as reviewing authority in the appeal from his own decision. Or, to use another analogy, he acted as trial judge and appellate judge in the same case.chanroblesvirtualawlibrary chanrobles virtual law library He ruled that the petitioners had abandoned the disputed mining claims, while, on the other hand, the Martinez and Pabilona groups had validly located the said claims. Hence, he dismissed the appeal from his own decision (pp. 340-341, Record on Appeal).chanroblesvirtualawlibrary chanrobles virtual law library (3) On September 20, 1963, the petitioners filed a complaint in the Court of First Instance of Zambales, assailing Secretary Gozon's decision and praying that they be declared the prior locators and possessors of the sixty-nine mineral claims in question. Impleaded as defendants in the case were the Secretary of Agriculture and Natural Resources, the Director of Mines and the members of the Martinez and Pabilona groups.chanroblesvirtualawlibrary chanrobles virtual law library

After hearing, the lower court sustained Secretary Gozon's decision and dismissed the case. It held that the disqualification petition of a judge to review his own decision or ruling (Sec. 1, Rule 137, Rules of Court) does not apply to administrative bodies; that there is no provision in the Mining Law, disqualifying the Secretary of Agriculture and Natural Resources from deciding an appeal from a case which he had decided as Director of Mines; that delicadeza is not a ground for disqualification; that the petitioners did not seasonably seek to disqualify Secretary Gozon from deciding their appeal, and that there was no evidence that the Secretary acted arbitrarily and with bias, prejudice, animosity or hostility to the petitioners (pp. 386-9, Record on Appeal).chanroblesvirtualawlibrary chanrobles virtual law library (4) The petitioners appealed to the Court of Appeals. The Sixth Division of that Court (Pascual, Agcaoili and Climaco, JJ.) in its decision dated February 15, 1978 reversed the judgment of the trial court and declared that the petitioners were the rightful locators and possessors of the said sixty-nine mining claims and held as invalid the mining claims overlapping the same.chanroblesvirtualawlibrary chanrobles virtual law library That Division found that the petitioners (Nava group) had discovered minerals and had validly located the said sixty-nine mining claims and that there was no sufficient basis for Secretary Gozon's finding that the mining claims of the Martinez and Pabilona groups were validly located.chanroblesvirtualawlibrary chanrobles virtual law library (5) The defendants, now the private respondents-appellees, filed a motion for reconsideration based principally on the ground that the Court of Appeals should have respected the factual findings of the Director of Mines and the Secretary of Agriculture and Natural Resources on the theory that the facts found in administrative decisions cannot be disturbed on appeal to the courts, citing Republic Act No. 4388 which amended section 61 of the Mining Law effective June 19, 1965; Pajo vs. Ago, 108 Phil. 905; Palanan Lumber & Plywood Co., Inc. vs. Arranz 65 O.G. 8473; Timbancaya vs. Vicente, 119 Phil. 169, Ortua vs. Singson Encarnacion, 59 Phil. 440.chanroblesvirtualawlibrary chanrobles virtual law library The defendants-movants prayed that the appeal be dismissed, meaning that the decisions of the lower court and of Director and Secretary Gozon be affirmed.chanroblesvirtualawlibrary chanrobles virtual law library The petitioners opposed that motion for reconsideration. In their opposition, they reiterated the contention in their brief that Secretary Gozon's decision was void and, therefore, the factual findings therein are not binding on the courts.chanroblesvirtualawlibrary chanrobles virtual law library As already stated, the same Sixth Division (composed of Pascula, Agrava and Maco, JJ.) in its second decision of October 13, 1978, set aside its first decision and granted the motion for curiously enough, the first decision was reconsidered not on the ground advanced by the movants-defendants, now the private respondents (Martinez and Pabilona groups), which was that the factual findings of the administrative officials should be upheld, but on the ground raised in petitioners' opposition, namely,

that Secretary Gozon's decision was void because he was disqualified to review his own decision as Director of Mines. So, as already noted, the Court of Appeals in its second decision remanded the case to the Minister of Natural Resources for another review of Director Gozon's decision. This was the prayer of the petitioners in their brief but in their opposition to the motion for reconsideration, they prayed that the first decision of the Court of Appeals in their favor be maintained.chanroblesvirtualawlibrary chanrobles virtual law library (6) The second decision did not satisfy the parties. They filed motions for reconsideration. The petitioners in their motion reiterated their prayer that the first decision be reinstated. They abandoned their prayer that the case be returned to the Minister of Natural Resources. On the other hand, the private respondents in their motion insisted that the trial court's decision be affirmed on the basis of the factual findings of the Director of Mines and the Secretary of Agriculture and Natural Resources. The Court of Appeals denied both motions in its resolutions of December 27, 1978 and January 15, 1979.chanroblesvirtualawlibrary chanrobles virtual law library Only the petitioners appealed from the second decision of the Court of Appeals. There is an arresting and noteworthy peculiarity in the present posture of this case now on appeal to this Court (as arresting and noteworthy as the peculiarity that Secretary Gozon reviewed his own decision as Director of Mines), chanrobles virtual law library That twist or peculiarity is that while the petitioners (Nava group) in their appellants' brief in the Court of Appeals prayed that Secretary Gozon's decision, alleged to be biased, be declared void and that the case be returned to the Secretary of Agriculture and Natural Resources for another review of Director Gozon's order, in their appellants' brief in this Court, they changed that relief and they now pray that the second decision of the Court of Appeals, referring this case to the Minister of Natural Resources for another review, be declared void and that its first decision be affirmed.chanroblesvirtualawlibrary chanrobles virtual law library In contrast, the private respondents, who did not appeal from the second decision of the Court of Appeals, instead of sustaining its holding that this case be referred to the Minister of Natural Resources or instead of defending that second decision, they being appellees, pray for the affirmance of the trial court's judgment sustaining the decisions of Director and Secretary Gozon.chanroblesvirtualawlibrary chanrobles virtual law library The inconsistent positions of the parties, which were induced by the contradictory decisions of the Court of Appeals, constitute the peculiar twist of this case in this Court.chanroblesvirtualawlibrary chanrobles virtual law library We hold that Secretary Gozon acted with grave abuse of discretion in reviewing his decision as Director of Mines. The palpably flagrant anomaly of a Secretary of Agriculture and Natural Resources reviewing his own decision as Director of Mines is a mockery of administrative justice. The Mining Law, Commonwealth Act No. 13-i, provides:

SEC. 61. Conflicts and disputes arising out of mining locations shall be submitted to the Director of Mines for decision: Provided, That the decision or order of the Director of Mines may be appealed to the Secretary of Agriculture and Natural Resources within thirty days from the date of its receipt.chanroblesvirtualawlibrary chanrobles virtual law library In case any one of the parties should disagree from the decision or order of the Director of Mines or of the Secretary of Agriculture and Natural Resources, the matter may be taken to the court of competent jurisdiction within thirty days from the receipt of such decision or order; otherwise the said decision or order shag be final and binding upon the parties concerned. (As amended by Republic Act No. 746 approved on June 18,1952).* Undoubtedly, the provision of section 61 that the decision of the Director of Mines may be appealed to the Secretary of Agriculture and Natural Resources contemplates that the Secretary should be a person different from the Director of Mines.chanroblesvirtualawlibrary chanrobles virtual law library In order that the review of the decision of a subordinate officer might not turn out to be a farce the reviewing officer must perforce be other than the officer whose decision is under review; otherwise, there could be no different view or there would be no real review of the case. The decision of the reviewing officer would be a biased view; inevitably, it would be the same view since being human, he would not admit that he was mistaken in his first view of the case.chanroblesvirtualawlibrary chanrobles virtual law library That is the obvious, elementary reason behind the disqualification of a trial judge, who is promoted to the appellate court, to sit in any case wherein his decision or ruling is the subject of review (Sec. 1, Rule 137, Rules of Court: secs. 9 and 27, Judiciary Law).chanroblesvirtualawlibrary chanrobles virtual law library A sense of proportion and consideration for the fitness of things should have deterred Secretary Gozon from reviewing his own decision as Director of Mines. He should have asked his undersecretary to undertake the review.chanroblesvirtualawlibrary chanrobles virtual law library Petitioners-appellants were deprived of due process, meaning fundamental fairness, when Secretary Gozon reviewed his own decision as Director of Mines. (See Amos Treat & Co. vs. Securities and Exchange Commission, 306 F. 2nd 260, 267.) chanrobles virtual law library WHEREFORE, we set aside the order of the Secretary of Agriculture and Natural Resources dated August 16, 1963 as affirmed by the trial court as well as the first decision of the Court of Appeals.chanroblesvirtualawlibrary chanrobles virtual law library We affirm its second decision, returning the case to the Minister of Natural Resources, with the directive that petitioners' appeal to the Minister be resolved de novo with the least delay as provided for in Presidential Decree No. 309, "establishing rules and procedures for the speedy disposition or settlement of conflicting mining claims".chanroblesvirtualawlibrary chanrobles virtual law library

We reverse the second part of that second decision stating that "thereafter, further proceedings will be taken in the trial court". That portion is unwarranted because the trial court does not retain any jurisdiction over the case once it is remanded to the Minister of Natural Resources. No costs.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED.chanroblesvirtualawlibrary chanrobles virtual law library

Antonio, Santos and Abad Santos, JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library Concepcion Jr., J, took no part. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-54597 December 15, 1982 FELICIDAD ANZALDO, Petitioner, vs. JACOBO C. CLAVE as Chairman of the Civil Service Commission and as Presidential Executive Assistant; JOSE A. R. MELO, as Commissioner of the Civil Service Commission, and EULALIA L. VENZON, Respondents.

AQUINO, J.: chanrobles virtual law library This is a controversy over the position of Science Research Supervisor II, whose occupant heads the Medical Research Department in the Biological Research Center of the National Institute of Science and Technology (NIST).chanroblesvirtualawlibrary chanrobles virtual law library Doctor Felicidad Estores-Anzaldo 55, seeks to annul the decision of Presidential Executive Assistant Jacobo C. Clave dated March 20, 1980, revoking her appointment dated January 5, 1978 as Science Research Supervisor II and directing the appointment to that position of Doctor Eulalia L. Venzon, 48.chanroblesvirtualawlibrary chanrobles virtual law library The contested position became vacant in 1974 when its incumbent, Doctor Quintin Kintanar, became Director of the Biological Research Center. Doctor Kintanar recommended that Doctor Venzon be appointed to that position. Doctor Anzaldo protested against that recommendation. The NIST Reorganization Committee found her protest to be valid and meritorious (p. 34, Rollo). Because of that impasse, which the NIST Commissioner did not resolve, the position was not filled up.chanroblesvirtualawlibrary chanrobles virtual law library

At the time the vacancy occurred, or on June 30, 1974, both Doctors Anzaldo and Venzon were holding similar positions in the Medical Research Department: that of Scientist Research Associate IV with an annual compensation of P12,013 per annum. Both were next-in-rank to the vacant position.chanroblesvirtualawlibrary chanrobles virtual law library Later, Doctor Pedro G. Afable, Vice-Chairman, became the Officer-in-Charge of the NIST. Effective January 5, 1978, he appointed Doctor Anzaldo to the contested position with compensation at P18,384 per annum. The appointment was approved by the Civil Service Commission.chanroblesvirtualawlibrary chanrobles virtual law library Doctor Afable, in his letter dated January 20, 1978, explained that the appointment was made after a thorough study and screening of the qualifications of Doctors Anzaldo and Venzon and upon the recommendation of the NIST Staff Evaluation Committee that gave 88 points to Doctor Anzaldo and 61 points to Doctor Venzon (p. 78, Rollo).chanroblesvirtualawlibrary chanrobles virtual law library Doctor Venzon in a letter dated January 23, 1978, addressed to Jacobo C. Clave, appealed to the Office of the President of the Philippines (pp. 139-40). The appeal was forwarded to the NIST Anzaldo to the contested position (p. 63, Rollo). The appeal-protest was later sent to the Civil Service Commission.chanroblesvirtualawlibrary chanrobles virtual law library Chairman Clave of the Civil Service Commission and Commissioner Jose A. R. Melo recommended in Resolution No. 1178 dated August 23, 1979 that Doctor Venzon be appointed to the contested position, a recommendation which is in conflict with the 1978 appointment of Doctor Anzaldo which was duly attested and approved by the Civil Service Commission (pp. 30 and 48, Rollo).chanroblesvirtualawlibrary chanrobles virtual law library The resolution was made pursuant to section 19(6) of the Civil Service Decree of the Philippines, Presidential Decree No. 807 (which took effect on October 6, 1975) and which provides that "before deciding a contested appointment, the Office of the President shall consult the Civil Service Commission." chanrobles virtual law library After the denial of her motion for the reconsideration of that resolution, or on January 5, 1980, Doctor Anzaldo appealed to the Office of the President of the Philippines. As stated earlier, Presidential Executive Assistant Clave (who was concurrently Chairman of the Civil Service Commission) in his decision of March 20, 1980 revoked Doctor Anzaldo's appointment and ruled that, "as recommended by the Civil Service Commission" (meaning Chairman Clave himself and Commissioner Melo), Doctor Venzon should be appointed to the contested position but that Doctor Anzaldo's appointment to the said position should be considered "valid and effective during the pendency" of Doctor Venzon's protest (p. 36, Rollo).chanroblesvirtualawlibrary chanrobles virtual law library In a resolution dated August 14, 1980, Presidential Executive Assistant Clave denied Doctor Anzaldo's motion for reconsideration. On August 25, 1980, she filed in this Court the instant special civil action of certiorari.chanroblesvirtualawlibrary chanrobles virtual law library

What is manifestly anomalous and questionable about that decision of Presidential Executive Assistant Clave is that it is an implementation of Resolution No. 1178 dated August 23, 1979 signed by Jacobo C. Clave, as Chairman of the Civil Service Commission and concurred in by Commissioner Jose A. Melo.chanroblesvirtualawlibrary chanrobles virtual law library In that resolution, Commissioner Clave and Melo, acting for the Civil Service Commission, recommended that Doctor Venzon be appointed Science Research Supervisor II in place of Doctor Anzaldo.chanroblesvirtualawlibrary chanrobles virtual law library When Presidential Executive Assistant Clave said in his decision that he was "inclined to concur in the recommendation of the Civil Service Commission", what he meant was that he was concurring with Chairman Clave's recommendation: he was concurring with himself (p. 35, Rollo).chanroblesvirtualawlibrary chanrobles virtual law library It is evident that Doctor Anzaldo was denied due process of law when Presidential Executive Assistant Clave concurred with the recommendation of Chairman Clave of the Civil Service Commission. The case is analogous to Zambales Chromite Mining Co. vs. Court of Appeals, L-49711, November 7, 1979, 94 SCRA 261, where it was held that the decision of Secretary of Agriculture and Natural Resources Benjamin M. Gozon, affirming his own decision in a mining case as Director of Mines was void because it was rendered with grave abuse of discretion and was a mockery of administrative justice.chanroblesvirtualawlibrary chanrobles virtual law library Due process of law means fundamental fairness. It is not fair to Doctor Anzaldo that Presidential Executive Assistant Clave should decide whether his own recommendation as Chairman of the Civil Service Commission, as to who between Doctor Anzaldo and Doctor Venzon should be appointed Science Research Supervisor II, should be adopted by the President of the Philippines.chanroblesvirtualawlibrary chanrobles virtual law library Common sense and propriety dictate that the commissioner in the Civil Service Commission, who should be consulted by the Office of the President, should be a person different from the person in the Office of the President who would decide the appeal of the protestant in a contested appointment.chanroblesvirtualawlibrary chanrobles virtual law library In this case, the person who acted for the Office of the President is the same person in the Civil Service Commission who was consulted by the Office of the President: Jacobo C. Clave. The Civil Service Decree could not have contemplated that absurd situation for, as held in the Zambales Chromite case, that would not be fair to the appellant.chanroblesvirtualawlibrary chanrobles virtual law library We hold that respondent Clave committed a grave abuse of discretion in deciding the appeal in favor of Doctor Venzon. The appointing authority, Doctor Afable, acted in accordance with law and properly exercised his discretion in appointing Doctor Anzaldo to the contested position.chanroblesvirtualawlibrary chanrobles virtual law library Doctor Anzaldo finished the pharmacy course in 1950 in the College of Pharmacy, University of the Philippines. She obtained from the Centro Escolar University the degree of Master of Science in

Pharmacy in 1962 and in 1965 the degree of Doctor of Pharmacy.chanroblesvirtualawlibrary chanrobles virtual law library Aside from her civil service eligibility as a pharmacist, she is a registered medical technologist and supervisor (unassembled).chanroblesvirtualawlibrary chanrobles virtual law library She started working in the NIST in 1954 and has served in that agency for about twenty-eight (28) years now. As already stated, in January, 1978, she was appointed to the contested Position of Science Research Supervisor II. Her present salary as Science Research Supervisor II, now known as Senior Science Research Specialist, is P 30,624 per annum after she was given a merit increase by Doctor Kintanar, effective July 1, 1981 (p. 259, Rollo).chanroblesvirtualawlibrary chanrobles virtual law library On the other hand, Doctor Venzon finished the medical course in the University of Santo Tomas in 1957. She started working in the NIST in 1960. She has been working in that agency for more than twenty-one (21) years. Doctor Anzaldo is senior to her in point of service. Considering that Doctor Anzaldo has competently and satisfactorily discharged the duties of the contested position for more than four (4) years now and that she is qualified for that position, her appointment should be upheld. Doctor Venzon's protest should be dismissed.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the decision of respondent Clave dated March 20, 1980 is set aside, and petitioner Anzaldo's promotional appointment to the contested position is declared valid. No costs.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. Makasiar (Chairman), Guerrero, Abad Santos and Escolin, JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library Concepcion, Jr., J., took no part.chanroblesvirtualawlibrary chanrobles virtual law library De Castro, J., concur in the result. Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 131652 March 9, 1998 BAYANI M. ALONTE, petitioner, vs.

HON. MAXIMO A. SAVELLANO JR., NATIONAL BUREAU OF INVESTIGATION and PEOPLE OF THE PHILIPPINES, respondents. G.R. No. 131728 March 9, 1998 BUENAVENTURA CONCEPCION, petitioner, vs. JUDGE MAXIMO SAVELLANO, JR., THE PEOPLE OF THE PHILIPPINES, and JUVIELYN Y. PUNONGBAYAN, respondents.

VITUG, J.: Pending before this Court are two separate petitions, one filed by petitioner Bayani M. Alonte, docketed G.R. No. 131652, and the other by petitioner Buenaventura Concepcion, docketed G.R. No. 131728, that assail the decision of respondent Judge Maximo A. Savellano, Jr., of the Regional Trial Court ("RTC"), Branch 53, of Manila finding both petitioners guilty beyond reasonable doubt of the crime of rape. The two petitions were consolidated. On 05 December 1996, an information for rape was filed against petitioners Bayani M. Alonte, an incumbent Mayor of Bian, La guna, and Buenaventura Concepcion predicated on a complaint filed by Juvie-lyn Punongbayan. The information contained the following averments; thus: That on or about September 12, 1996, in Sto. Tomas, Bian, Laguna, and within the jurisdiction of this Honorable court, the above named accused, who is the incumbent mayor of Bian, Laguna after giving complainant-child drinking water which made her dizzy and weak, did then and there willfully, unlawfully and feloniously have carnal knowledge with said JUVIELYN PUNONGBAYAN against her will and consent, to her damage and prejudice. That accused Buenaventura "Wella" Concepcion without having participated as principal or accessory assisted in the commission of the offense by bringing said complainant child to the rest house of accused Bayani "Arthur" Alonte at Sto. Tomas, Bian, Laguna and after receiving the amount of P1,000.00 left her alone with Bayani Alonte who subsequently raped her. Contrary to Law. 1 The case was docketed Criminal Case No. 9619-B and assigned by raffle to Branch 25 of the RTC of Bian, Laguna, presided over by Judge Pablo B. Francisco. On 13 December 1996, Juvie-lyn Punongbayan, through her counsel Attorney Remedios C. Balbin, and Assistant Chief State Prosecutor ("ACSP") Leonardo Guiyab, Jr., filed with the Office of the Court Administrator a Petition for a Change of Venue (docketed Administrative Matter No. 97-1-12-RTC) to have the case transferred and tried by any of the Regional Trial Courts in Metro Manila.

During the pendency of the petition for change of venue, or on 25 June 1997, Juvie-lyn Punongbayan, assisted by her parents and counsel, executed an affidavit of desistance, quoted herein in full, as follows: AFFIDAVIT OF DESISTANCE I, JUVIE-LYN YAMBAO PUNONGBAYAN, 17 years of age, a resident of No. 5 Uranus Street, Congressional Avenue Subdivision, Quezon City, duly assisted by private legal counsel and my parents, after having duly sworn in accordance with law, depose and say: 1. That I am the Complainant in the rape case filed against Mayor Bayani "Arthur" Alonte of Bian, Laguna, with the RTC-Branch 25 of Bian, Laguna; 2. That the case has been pending for some time, on preliminary issues, specifically, (a) change of venue, filed with the Supreme Court; (b) propriety of the appeal to the Court of Appeals, and after its denial by said court, brought to the Office of the President, on the veracity of the findings of the FiveMan Investigating Panel of the State Prosecutor's Office, and the Secretary of Justice, and (c) a holddeparture order filed with the Bian Court. 3. That the legal process moves ever so slowly, and meanwhile, I have already lost two (2) semesters of my college residence. And when the actual trial is held after all the preliminary issues are finally resolved, I anticipate a still indefinite suspension of my schooling to attend the hearings; 4. That during the entire period since I filed the case, my family has lived a most abnormal life: my father and mother had to give up their jobs; my younger brother, who is in fourth grade, had to stop his schooling, like myself; 5 That I do not blame anyone for the long, judicial process, I simply wish to stop and live elsewhere with my family, where we can start life anew, and live normally once again; 6. That I pray that I be allowed to withdraw my complaint for rape and the other charge for child abuse wherein the Five-Man Investigating Panel of the Office of the State Prosecutor found a prima facie case although the information has not been filed, and that I will not at any time revive this, and related cases or file new cases, whether, criminal, civil, and/or administrative, here or anywhere in the Philippines; 7 That I likewise realize that the execution of this Affidavit will put to doubt my credibility as a witnesscomplainant; 8. That this is my final decision reached without fear or favor, premised on a corresponding commitment that there will be no reprisals in whatever form, against members of the police force or any other official of officer, my relatives and friends who extended assistance to me in whatever way, in my search for justice. WHEREOF, I affix my signature this 25 day of June, 1997, in Quezon City. (Sgd) JUVIE-LYN Y. PUNONGBAYAN

Complainant Assisted by: (Sgd) ATTY. REMEDIOS C. BALBIN Private Prosecutor In the presence of: (Sgd) PABLO PUNONGBAYAN Father (Sgd) JULIE Y. PUNONGBAYAN Mother SUBSCRIBED AND SWORN to before me this 25 day of June, 1997, in Quezon City. (Sgd) Illegible Administering Officer 2 On 28 June 1997, Atty. Ramon C. Casino, on behalf of petitioners, moved to have the petition for change of venue dismissed on the ground that it had become moot in view of complainant's affidavit of desistance. On 22 August 1997, ACSP Guiyab filed his comment on the motion to dismiss. Guiyab asserted that he was not aware of the desistance of private complainant and opined that the desistance, in any case, would not produce any legal effect since it was the public prosecutor who had direction and control of the prosecution of the criminal action. He prayed for the denial of the motion to dismiss. On 02 September 1997, this Court issued a Resolution (Administrative Matter No. 97-1-12-RTC), granting the petition for change of venue. The Court said: These affidavits give specific names, dates, and methods being used to abort, by coercion or corruption, the prosecution of Criminal Case No. 9619-B. It is thus incorrect for oppositors Alonte and Concepcion to contend that the fear of the petitioner, her private counsel and her witnesses are too generalized if not fabricated. Indeed, the probability that in desisting from pursuing her complaint for rape, petitioner, a minor, may have succumbed to some illicit influence and undue pressure. To prevent possible miscarriage of justice is a good excuse to grant the petition to transfer the venue of Criminal Case No. 9619-B from Bian, Laguna to the City of Manila. IN VIEW WHEREOF, the Petition for Change of Venue from Bian, Laguna to the City of Manila is granted. The Executive Judge of RTC Manila is ordered to raffle Crim. Case No. 9619-B to any of its branches. The judge to whom Crim. Case No. 9619-B shall be raffled shall resolve the petitioner's Motion to Resume Proceedings filed in Br. XXV of the RTC of Bian, Laguna and determine the voluntariness and validity of petitioner's desistance in light of the opposition of the public prosecutor, Asst. Chief State Prosecutor Leonardo Guiyab. The branch clerk of court of Br. XXV of the RTC of

Bian, Laguna is ordered to personally deliver to the Executive Judge of Manila the complete records of Crim. Case No. 9619-B upon receipt of this Resolution. 3 On 17 September 1997, the case, now re-docketed Criminal Case No. 97-159955 by the Clerk of Court of Manila, was assigned by raffle to Branch 53, RTC Manila, with respondent Judge Maximo A. Savellano, Jr., presiding. On 07 October 1997, Juvie-lyn Punongbayan, through Attorney Balbin, submitted to the Manila court a "compliance" where she reiterated "her decision to abide by her Affidavit of Desistance." In an Order, dated 09 October 1997, Judge Savellano found probable cause for the issuance of warrants for the arrest of petitioners Alonte and Concepcion "without prejudice to, and independent of, this Court's separate determination as the trier of facts, of the voluntariness and validity of the [private complainant's] desistance in the light of the opposition of the public prosecutor, Asst. Chief State Prosecutor Leonardo Guiyab." On 02 November 1997, Alonte voluntarily surrendered himself to Director Santiago Toledo of the National Bureau of Investigation ("NBI"), while Concepcion, in his case, posted the recommended bail of P150,000.00. On 07 November 1997, petitioners were arraigned and both pleaded "not guilty" to the charge. The parties manifested that they were waiving pre-trial. The proceedings forthwith went on. Per Judge Savellano, both parties agreed to proceed with the trial of the case on the merits. 4 According to Alonte, however, Judge Savellano allowed the prosecution to present evidence relative only to the question of the voluntariness and validity of the affidavit of desistance. 5 It would appear that immediately following the arraignment, the prosecution presented private complainant Juvielyn Punongbayan followed by her parents. During this hearing, Punongbayan affirmed the validity and voluntariness of her affidavit of desistance. She stated that she had no intention of giving positive testimony in support of the charges against Alonte and had no interest in further prosecuting the action. Punongbayan confirmed: (i) That she was compelled to desist because of the harassment she was experiencing from the media, (ii) that no pressures nor influence were exerted upon her to sign the affidavit of desistance, and (iii) that neither she nor her parents received a single centavo from anybody to secure the affidavit of desistance. Assistant State Prosecutor Marilyn Campomanes then presented, in sequence: (i) Punongbayan's parents, who affirmed their signatures on the affidavit of desistance and their consent to their daughter's decision to desist from the case, and (ii) Assistant Provincial Prosecutor Alberto Nofuente, who attested that the affidavit of desistance was signed by Punongbayan and her parents in his presence and that he was satisfied that the same was executed freely and voluntarily. Finally, Campomanes manifested that in light of the decision of private complainant and her parents not to pursue the case, the State had no further evidence against the accused to prove the guilt of the accused. She, then, moved for the "dismissal of the case" against both Alonte and Concepcion. Thereupon, respondent judge said that "the case was submitted for decision." 6

On 10 November 1997, petitioner Alonte filed an "Urgent Motion to Admit to Bail." Assistant State Prosecutor Campomanes, in a Comment filed on the same date, stated that the State interposed "no objection to the granting of bail and in fact Justice and Equity dictates that it joins the accused in his prayer for the granting of bail." Respondent judge did not act on the application for bail. On 17 November 1997, Alonte filed anew an Urgent Plea to Resolve the Motion for Bail. On even date, ASP Campomanes filed a Manifestation deeming "it proper and in accord with justice and fair play to join the aforestated motion." Again, the respondent judge did not act on the urgent motion. The records would indicate that on the 25th November 1997, 1st December 1997, 8th December 1997 and 10th December 1997, petitioner Alonte filed a Second, Third, Fourth and Fifth Motion for Early Resolution, respectively, in respect of his application for bail. None of these motions were acted upon by Judge Savellano. On 17 December 1997, Attorney Philip Sigfrid A. Fortun, the lead counsel for petitioner Alonte received a notice from the RTC Manila. Branch 53, notifying him of the schedule of promulgation, on 18 December 1997, of the decision on the case. The counsel for accused Concepcion denied having received any notice of the scheduled promulgation. On 18 December 1997, after the case was called, Atty. Sigrid Fortun and Atty. Jose Flaminiano manifested that Alonte could not attend the promulgation of the decision because he was suffering from mild hypertension and was confined at the NBI clinic and that, upon the other hand, petitioner Concepcion and his counsel would appear not to have been notified of the proceedings. The promulgation, nevertheless, of the decision proceeded in absentia; the reading concluded: WHEREFORE, judgment is hereby rendered finding the two (2) accused Mayor Bayani Alonte and Buenaventura "Wella" Concepcion guilty beyond reasonable doubt of the heinous crime of RAPE, as defined and penalized under Article 335(2) in relation to Article 27 of the Revised Penal Code, as amended by Republic Act No. 7659, for which each one of the them is hereby sentenced to suffer the indivisible penalty of RECLUSION PERPETUA or imprisonment for twenty (20) years and one (1) day to forty (40) years. In view thereof, the bail bond put up by the accused Buenaventura "Wella'" Concepcion for his provisional liberty is hereby cancelled and rendered without any further force and effect. SO ORDERED. 7 On the same day of 18th December 1997, petitioner Alonte filed a motion for reconsideration. Without waiting for its resolution, Alonte filed the instant "Ex Abundante Ad Cautelam" for "Certiorari, Prohibition, Habeas Corpus, Bail, Recusation of respondent Judge, and for Disciplinary Action against an RTC Judge." Petitioner Concepcion later filed his own petition for certiorari and mandamus with the Court.

Alonte submits the following grounds in support of his petition seeking to have the decision nullified and the case remanded for new trial; thus: The respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when he rendered a Decision in the case a quo (Annex A) without affording the petitioner his Constitutional right to due process of law (Article III, 1, Constitution). The respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when he rendered a Decision in the case a quo in violation of the mandatory provisions of the Rules on Criminal Procedure, specifically, in the conduct and order of trial (Rule 119) prior to the promulgation of a judgment (Rule 120; Annex A). The respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when, in total disregard of the Revised Rules on Evidence and existing doctrinal jurisprudence, he rendered a Decision in the case a quo (Annex A) on the basis of two (2) affidavits (Punongbayan's and Balbin's) which were neither marked nor offered into evidence by the prosecution, nor without giving the petitioner an opportunity to cross-examine the affiants thereof, again in violation of petitioner's right to due process (Article III, 1, Constitution). The respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when he rendered a Decision in the case a quo without conducting a trial on the facts which would establish that complainant was raped by petitioner (Rule 119, Article III, 1, Constitution), thereby setting a dangerous precedent where heinous offenses can result in conviction without trial (then with more reason that simpler offenses could end up with the same result). 8 On the other hand, Concepcion relies on the following grounds in support of his own petition; thus: 1. The decision of the respondent Judge rendered in the course of resolving the prosecution's motion to dismiss the case is a patent nullity for having been rendered without jurisdiction, without the benefit of a trial and in total violation of the petitioner's right to due process of law. 2. There had been no valid promulgation of judgment at least as far as petitioner is concerned. 3. The decision had been rendered in gross violation of the right of the accused to a fair trial by an impartial and neutral judge whose actuations and outlook of the case had been motivated by a sinister desire to ride on the crest of media hype that surrounded this case and use this case as a tool for his ambition for promotion to a higher court. 4. The decision is patently contrary to law and the jurisprudence in so far as it convicts the petitioner as a principal even though he has been charged only as an accomplice in the information. 9 The petitions deserve some merit; the Court will disregard, in view of the case milieu, the prematurity of petitioners' invocation, i.e., even before the trial court could resolve Alonte's motion for reconsideration.

The Court must admit that it is puzzled by the somewhat strange way the case has proceeded below. Per Judge Savellano, after the waiver by the parties of the pre-trial stage, the trial of the case did proceed on the merits but that The two (2) accused did not present any countervailing evidence during the trial. They did not take the witness stand to refute or deny under oath the truth of the contents of the private complainant's aforementioned affidavit which she expressly affirmed and confirmed in Court, but, instead, thru their respective lawyers, they rested and submitted the case for decision merely on the basis of the private complainant's so called "desistance" which, to them, was sufficient enough for their purposes. They left everything to the so-called "desistance" of the private complainant. 10 According to petitioners, however, there was no such trial for what was conducted on 07 November 1997, aside from the arraignment of the accused, was merely a proceeding in conformity with the resolution of this Court in Administrative Case No. 97-1-12-RTC to determine the validity and voluntariness of the affidavit of desistance executed by Punongbayan. It does seem to the Court that there has been undue precipitancy in the conduct of the proceedings. Perhaps the problem could have well been avoided had not the basic procedures been, to the Court's perception, taken lightly. And in this shortcoming, looking at the records of the case, the trial court certainly is not alone to blame. Section 14, paragraphs (1) and (2), of Article III, of the Constitution provides the fundamentals. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. Jurisprudence 11 acknowledges that due process in criminal proceedings, in particular, require (a) that the court or tribunal trying the case is properly clothed with judicial power to hear and determine the matter before it; (b) that jurisdiction is lawfully acquired by it over the person of the accused; (c) that the accused is given an opportunity to be heard; and (d) that judgment is rendered only upon lawful hearing. 12 The above constitutional and jurisprudential postulates, by now elementary and deeply imbedded in our own criminal justice system, are mandatory and indispensable. The principles find universal acceptance and are tersely expressed in the oft-quoted statement that procedural due process cannot possibly be met without a "law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial." 13

The order of trial in criminal cases is clearly spelled out in Section 3, Rule 119, of the Rules of Court; viz: Sec. 3. Order of trial. The trial shall proceed in the following order: (a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. (b) The accused may present evidence to prove his defense, and damages, if any, arising from the issuance of any provisional remedy in the case. (c) The parties may then respectively present rebutting evidence only, unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue. (d) Upon admission of the evidence, the case shall be deemed submitted for decision unless the court directs the parties to argue orally or to submit memoranda. (e) However, when the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified accordingly. In Tabao vs. Espina, 14 the Court has underscored the need to adhere strictly to the above rules. It reminds that . . . each step in the trial process serves a specific purpose. In the trial of criminal cases, the constitutional presumption of innocence in favor of an accused requires that an accused be given sufficient opportunity to present his defense. So, with the prosecution as to its evidence. Hence, any deviation from the regular course of trial should always take into consideration the rights of all the parties to the case, whether in the prosecution or defense. In the exercise of their discretion, judges are sworn not only to uphold the law but also to do what is fair and just. The judicial gavel should not be wielded by one who has an unsound and distorted sense of justice and fairness. 15 While Judge Savellano has claimed in his Comment that Petitioners-accused were each represented during the hearing on 07 November 1997 with their respective counsel of choice. None of their counsel interposed an intention to cross-examine rape victim Juvielyn Punongbayan, even after she attested, in answer to respondent judge's clarificatory questions, the voluntariness and truth of her two affidavits one detailing the rape and the other detailing the attempts to buy her desistance; the opportunity was missed/not used, hence waived. The rule of case law is that the right to confront and cross-examine a witness "is a personal one and may be waived." (emphasis supplied) it should be pointed out, however, that the existence of the waiver must be positively demonstrated. The standard of waiver requires that it "not only must be voluntary, but must be knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely consequences." 16 Mere silence of the holder of the right should not be so construed as a waiver of right, and the courts must indulge every reasonable presumption against waiver. 17 The Solicitor General has aptly discerned a few of the

deviations from what otherwise should have been the regular course of trial: (1) Petitioners have not been directed to present evidence to prove their defenses nor have dates therefor been scheduled for the purpose; 18 (2) the parties have not been given the opportunity to present rebutting evidence nor have dates been set by respondent Judge for the purpose; 19 and (3) petitioners have not admitted the act charged in the Information so as to justify any modification in the order of trial. 20 There can be no short-cut to the legal process, and there can be no excuse for not affording an accused his full day in court. Due process, rightly occupying the first and foremost place of honor in our Bill of Rights, is an enshrined and invaluable right that cannot be denied even to the most undeserving. This case, in fine, must be remanded for further proceedings. And, since the case would have to be sent back to the court a quo, this ponencia has carefully avoided making any statement or reference that might be misconstrued as prejudgment or as pre-empting the trial court in the proper disposition of the case. The Court likewise deems it appropriate that all related proceedings therein, including the petition for bail, should be subject to the proper disposition of the trial court. Nevertheless, it is needful to stress a few observations on the affidavit of desistance executed by the complainant. Firstly, the affidavit of desistance of Juvie-Lyn Punongbayan, hereinbefore quoted, does not contain any statement that disavows the veracity of her complaint against petitioners but merely seeks to "be allowed to withdraw" her complaint and to discontinue with the case for varied other reasons. On this subject, the case of People vs. Junio, 21 should be instructive. The Court has there explained: The appellant's submission that the execution of an Affidavit of Desistance by complainant who was assisted by her mother supported the "inherent incredibility of prosecution's evidence" is specious. We have said in so many cases that retractions are generally unreliable and are looked upon with considerable disfavor by the courts. The unreliable character of this document is shown by the fact that it is quite incredible that after going through the process of having accused-appellant arrested by the police, positively identifying him as the person who raped her, enduring the humiliation of a physical examination of her private parts, and then repeating her accusations in open court by recounting her anguish, Maryjane would suddenly turn around and declare that "[a]fter a careful deliberation over the case, (she) find(s) that the same does not merit or warrant criminal prosecution. Thus, we have declared that at most the retraction is an afterthought which should not be given probative value. It would be a dangerous rule to reject the testimony taken before the court of justice simply because the witness who has given it later on changed his mind for one reason or another. Such a rule will make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. Because affidavits of retraction can easily be secured from poor and ignorant witnesses, usually for monetary consideration, the Court has invariably regarded such affidavits as exceedingly unreliable [Flores vs. People, 211 SCRA 622, citing De Guzman vs. Intermediate Appellate Court, 184 SCRA 128; People vs. Galicia, 123 SCRA 550.] 22 The Junio rule is no different from ordinary criminal cases. For instance, in People vs. Ballabare, 23 a murder case, the Court has ruled:

The contention has no merit. To begin with, the Affidavit executed by eyewitness Tessie Asenita is not a recantation. To recant a prior statement is to renounce and withdraw it formally and publicly. [36 WORDS AND PHRASES 683, citing Pradlik vs. State, 41-A 2nd, 906, 907.] In her affidavit, Tessie Asenita did not really recant what she had said during the trial. She only said she wanted to withdraw her testimony because her father, Leonardo Tacadao, Sr., was no longer interested in prosecuting the case against accused-appellant. Thus, her affidavit stated: 3. That inasmuch as my father, Leonardo Tacadao, Sr., the complainant therein, was no longer interested to prosecute the case as manifested in the Sworn Affidavit of Desistance before the Provincial Prosecutor, I do hereby WITHDRAW and/or REVOKE my testimony of record to confirm (sic) with my father's desire; It is absurd to disregard a testimony that has undergone trial and scrutiny by the court and the parties simply because an affidavit withdrawing the testimony is subsequently presented by the defense. In the first place, any recantation must be tested in a public trial with sufficient opportunity given to the party adversely affected by it to cross-examine the recanting witness. In this case, Tessie Asenita was not recalled to the witness stand to testify on her affidavit. Her affidavit is thus hearsay. It was her husband, Roque Asenita, who was presented and the matters he testified to did not even bear on the substance of Tessie's affidavit. He testified that accused-appellant was not involved in the perpetration of the crime. In the second place, to accept the new evidence uncritically would be to make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. [De Guzman vs. Intermediate Appellate Court, 184 SCRA 128, 134, citing People vs. Morales, 113 SCRA 683.] For even assuming that Tessie Asenita had made a retraction, this circumstance alone does not require the court to disregard her original testimony. A retraction does not necessarily negate an earlier declaration. [People vs. Davatos, 229 SCRA 647.] For this reason, courts look with disfavor upon retractions because they can easily be obtained from witnesses usually through intimidation or for monetary considerations. [People vs. Clamor, 198 SCRA 642.] Hence, when confronted with a situation where a witness recants his testimony, courts must not automatically exclude the original testimony solely on the basis of the recantation. They should determine which testimony should be given credence through a comparison of the original testimony and the new testimony, applying the general rules of evidence. [Reano vs. Court of Appeals, 165 SCRA 525.] In this case we think the trial court correctly ruled. 24 It may not be amiss to state that courts have the inherent power to compel the attendance of any person to testify in a case pending before it, and a party is not precluded from invoking that authority. 25 Secondly, an affidavit of desistance by itself, even when construed as a pardon in the so-called "private crimes," is not a ground for the dismissal of the criminal case once the action has been instituted. The affidavit, nevertheless, may, as so earlier intimated, possibly constitute evidence whose weight or probative value, like any other piece of evidence, would be up to the court for proper evaluation. The decision in Junio went on to hold

While "[t]he offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint flied by the offended party or her parents, grandparents, or guardian, nor in any case, if the offender has been expressly pardoned by the above named persons, as the case may be," [Third par. of Art. 344, The Revised Penal Code.] the pardon to justify the dismissal of the complaint should have been made prior to the institution of the criminal action. [People vs. Entes, 103 SCRA 162, cited by People vs. Soliao, 194 SCRA 250, which in turn is cited in People vs. Villorente, 210 SCRA 647.] Here, the motion to dismiss to which the affidavit of desistance is attached was filed after the institution of the criminal case. And, affiant did not appear to be serious in "signifying (her) intention to refrain from testifying" since she still completed her testimony notwithstanding her earlier affidavit of desistance. More, the affidavit is suspect considering that while it was dated "April 1992," it was only submitted sometime in August 1992, four (4) months after the Information was filed before the court a quo on 6 April 1992, perhaps dated as such to coincide with the actual filing of the case. 26 In People vs. Miranda, 27 applying the pertinent provisions of Article 344 of the Revised Penal Code which, in full, states Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape, and acts of lasciviousness. The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders. The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above named persons, as the case may be. In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the coprincipals, accomplices and accessories after the fact of the above-mentioned crimes. the Court said: Paragraph 3 of the legal provision above quoted prohibits a prosecution for seduction, abduction, rape, or acts of lasciviousness, except upon a complaint made by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the abovenamed persons, as the case may be. It does not prohibit the continuance of a prosecution if the offended party pardons the offender after the cause has been instituted, nor does it order the dismissal of said cause. The only act that according to article 344 extinguishes the penal action and the penalty that may have been imposed is the marriage between the offended and the offended party. 28 In People vs. Infante, 29 decided just a little over a month before Miranda, the Court similarly held:

In this court, after the case had been submitted, a motion to dismiss was filed on behalf of the appellant predicated on an affidavit executed by Manuel Artigas, Jr., in which he pardoned his guilty spouse for her infidelity. But this attempted pardon cannot prosper for two reasons. The second paragraph of article 344 of the Revised Penal Code which is in question reads: "The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders." This provision means that the pardon afforded the offenders must come before the institution of the criminal prosecution, and means, further, that both the offenders must be pardoned by the offended party. To elucidate further, article 435 of the old Penal Code provided: "The husband may at any time remit the penalty imposed upon his wife. In such case the penalty imposed upon the wife's paramour shall also be deemed to be remitted." These provisions of the old Penal Code became inoperative after the passage of Act No. 1773, section 2, which had the effect of repealing the same. The Revised Penal Code thereafter expressly repealed the old Penal Code, and in so doing did not have the effect of reviving any of its provisions which were not in force. But with the incorporation of the second paragraph of article 344, the pardon given by the offended party again constitutes a bar to the prosecution for adultery. Once more, however, it must be emphasized that this pardon must come before the institution of the criminal prosecution and must be for both offenders to be effective circumstances which do not concur in this case. 30 The decisions speak well for themselves, and the Court need not say more than what it has heretofore already held. Relative to the prayer for the disqualification of Judge Savellano from further hearing the case, the Court is convinced that Judge Savellano should, given the circumstances, the best excused from the case. Possible animosity between the personalities here involved may not all be that unlikely. The pronouncement of this Court in the old case of Luque vs. Kayanan 31 could again be said: All suitors are entitled to nothing short of the cold neutrality of an independent, wholly-free, disinterested and unbiased tribunal. Second only to the duty of rendering a just decision is the duty of doing it in a manner that will not arouse any suspicion as to the fairness and integrity of the Judge. 32 It is not enough that a court is impartial, it must also be perceived as impartial. The Court cannot end this ponencia without a simple reminder on the use of proper language before the courts. While the lawyer in promoting the cause of his client or defending his rights might do so with fervor, simple courtesy demands that it be done within the bounds of propriety and decency. The use of intemperate language and unkind ascriptions hardly can be justified nor can have a place in the dignity of judicial forum. Civility among members of the legal profession is a treasured tradition that must at no time be lost to it. Finally, it may be opportune to say, once again, that prosecutors are expected not merely to discharge their duties with the highest degree or excellence, professionalism and skill but also to act each time with utmost devotion and dedication to duty. 33 The Court is hopeful that the zeal which has been exhibited many times in the past, although regrettably a disappointment on few occasions, will not be wanting in the proceedings yet to follow. WHEREFORE, conformably with all the foregoing, the Court hereby RULES that

(a) The submission of the "Affidavit of Desistance," executed by Juvie-Lyn Y. Punongbayan on 25 June 1997, having been filed AFTER the institution of Criminal Case No. 97-159935, DOES NOT WARRANT THE DISMISSAL of said criminal case; (b) For FAILURE OF DUE PROCESS, the assailed judgment, dated 12 December 1997, convicting petitioners is declared NULL AND VOID and thereby SET ASIDE; accordingly, the case is REMANDED to the trial court for further proceedings; and (c) Judge Maximo A. Savellano, Jr., presiding Judge of Branch 53 of the Regional Trial Court of Manila, is ENJOINED from further hearing Criminal Case No. 97-159935; instead, the case shall immediately be scheduled for raffle among the other branches of that court for proper disposition. No special pronouncement on costs. SO ORDERED. Melo, Kapunan, Martinez, Quisumbing and Purisima, JJ., concur. Narvasa, C.J., took no part.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 167139 : February 25, 2010 SUSIE CHAN-TAN, Petitioner, vs. JESSE C. TAN, Respondent.

DECISION CARPIO, J.:

The Case This is a petition for review[1] cralaw of (i) the 17 May 2004 Resolution[2] cralaw amending the 30 March 2004 Decision[3] cralaw and (ii) the 15 February 2005 Resolution[4] cralaw of the RegionalTrial Court of Quezon City, Branch 107, in Civil Case No. Q-01-45743. In its 30 March 2004 Decision, the trial court declared the marriage between petitioner Susie Chan-Tan and respondent Jesse Tan void under Article 36 of the Family Code. Incorporated as part of the decision was the 31 July 2003 Partial Judgment[5] cralaw approving the Compromise Agreement[6] cralaw of the parties. In its 17 May 2004 Resolution, the trial court granted to respondent custody of the children, ordered petitioner to turn

over to respondent documents and titles in the latters name, and allowed respondent to stay in the family dwelling. In its 15 February 2005 Resolution, the trial court denied petitioners motion for reconsideration of the 28 December 2004 Resolution[7] cralaw denying petitioners motion to dismiss and motion for reconsideration of the 12 October 2004 Resolution,[8] cralaw which in turn denied for late filing petitioner's motion for reconsideration of the 17 May 2004 resolution. The Facts Petitioner and respondent were married in June of 1989 at Manila Cathedral in Intramuros, Manila.[9] cralaw They were blessed with two sons: Justin, who was born in Canada in 1990 and Russel, who was born in the Philippines in 1993.[10] cralaw In 2001, twelve years into the marriage, petitioner filed a case for the annulment of the marriage under Article 36 of the Family Code. The parties submitted to the court a compromise agreement, which we quote in full: 1. The herein parties mutually agreed that the two (2) lots located at Corinthian Hills, Quezon City and more particularly described in the Contract to Sell, marked in open court as Exhibits H to H-3 shall be considered as part of the presumptive legitimes of their two (2) minor children namely, Justin Tan born on October 12, 1990 and Russel Tan born on November 28, 1993. Copies of the Contract to Sell are hereto attached as Annexes A and B and made integral parts hereof. 2. Susie Tan hereby voluntarily agrees to exclusively shoulder and pay out of her own funds/assets whatever is the remaining balance or unpaid amounts on said lots mentioned in paragraph 1 hereof directly with Megaworld Properties, Inc., until the whole purchase or contract amounts are fully paid. Susie Tan is hereby authorized and empowered to directly negotiate, transact, pay and deal with the seller/developer Megaworld Properties, Inc., in connection with the Contract to Sell marked as Annexes A and B hereof. The property coveredby CCT No. 3754 of the Registry of Deeds of Quezon City and located at Unit O, Richmore Town Homes 12-B Mariposa St., Quezon City shall be placed in co-ownership under the name of Susie Tan (1/3), Justin Tan (1/3) and Russel Tan (1/3) to the exclusion of Jesse Tan. The property covered by TCT No. 48137 of the Registry of Deeds of Quezon City and located at View Master Town Homes, 1387 Quezon Avenue, Quezon City shall be exclusively owned by Jesse Tan to the exclusion of Susie Tan. The undivided interest in the Condominium Unit in Cityland Shaw. Jesse Tan shall exclusively own blvd. to the exclusion of Susie Tan. The shares of stocks, bank accounts and other properties presently under the respective names of Jesse Tan and Susie Tan shall be exclusively owned by the spouse whose name appears as the registered/account owner or holder in the corporate records/stock transfer books, passbooks and/or the one in possession thereof, including the dividends/fruits thereof, to the exclusion of the other spouse.

Otherwise stated, all shares, bank accounts and properties registered and under the name and/or in the possession of Jesse Tan shall be exclusively owned by him only and all shares, accounts and properties registered and/or in the possession and under the name of Susie Tan shall be exclusively owned by her only. However, as to the family corporations of Susie Tan, Jesse Tan shall execute any and all documents transferring the shares of stocks registered in his name in favor of Susie Tan, or Justin Tan/Russel Tan. A copy of the list of the corporation owned by the family of Susie Tan is hereto attached as Annex C and made an integral part hereof. The parties shall voluntarily and without need of demand turn over to the other spouse any and all original documents, papers, titles, contracts registered in the name of the other spouse that are in their respective possessions and/or safekeeping. 3. Thereafter and upon approval of this Compromise Agreement by the Honorable Court, the existing property regime of the spouses shall be dissolved and shall now be governed by Complete Separation of Property. Parties expressly represent that there are no known creditors that will be prejudiced by the present compromise agreement. The parties shall have joint custody of their minor children. However, the two (2) minor children shall stay with their mother, Susie Tan at 12-B Mariposa St., Quezon City. The husband, Jesse Tan, shall have the right to bring out the two (2) children every Sunday of each month from 8:00 AM to 9:00 PM. The minor children shall be returned to 12-B Mariposa Street, Quezon City on or before 9:00 PM of every Sunday of each month. The husband shall also have the right to pick up the two (2) minor children in school/or in the house every Thursday of each month. The husband shall ensure that the children be home by 8:00 PM of said Thursdays. During the summer vacation/semestral break or Christmas vacation of the children, the parties shall discuss the proper arrangement to be made regarding the stay of the children with Jesse Tan. Neither party shall put any obstacle in the way of the maintenance of the love and affection between the children and the other party, or in the way of a reasonable and proper companionship between them, either by influencing the children against the other, or otherwise; nor shall they do anything to estrange any of them from the other. The parties agreed to observe civility, courteousness and politeness in dealing with each other and shall not insult, malign or commit discourteous acts against each other and shall endeavor to cause their other relatives to act similarly. 4. Likewise, the husband shall have the right to bring out and see the children on the following additional dates, provided that the same will not impede or disrupt their academic schedule in Xavier School, the dates are as follows:

a. Birthday of Jesse Tan b. Birthday of Grandfather and Grandmother, first cousins and uncles and aunties c. Father's Day d. Death Anniversaries of immediate members of the family of Jesse Tan e. During the Christmas seasons/vacation the herein parties will agree on such dates as when the children can stay with their father. Provided that if the children stay with their father on Christmas Day from December 24thto December 25thuntil 1:00 PM the children will stay with their mother on December 31 until January 1, 1:00 PM, or vice versa. The husband shall always be notified of all school activities of the children and shall see to it that he will exert his best effort to attend the same. 5. During the birthdays of the two (2) minor children, the parties shallas far as practicable have one celebration. Provided that if the same is not possible, the Husband (Jesse Tan) shall have the right to see and bring out the children for at least four (4) hours during the day or the day immediately following/or after the birthday, if said visit or birthday coincides with the school day. 6. The existing Educational Plans of the two children shall be used and utilized for their High School and College education, in the event that the Educational Plans are insufficient to cover their tuition, the Husband shall shoulder the tuition and other miscellaneous fees, costs of books and educational materials, uniform, school bags, shoes and similar expenses like summer workshops which are taken in Xavier School, which will be paid directly by Jesse Tan to the children's school when the same fall due. Jesse Tan, if necessary, shall pay tutorial expenses, directly to the tutor concerned. The husband further undertake to pay P10,000.00/monthly support pendente lite to be deposited in the ATM Account of SUSIE CHAN with account no. 3-189-53867-8 Boni Serrano Branch effective on the 15thof each month. In addition Jesse Tan undertakes to give directly to his two (2) sons every Sunday, the amount needed and necessary for the purpose of the daily meals of the two (2) children in school. 7. This Compromise Agreement is not against the law, customs, public policy,public order and good morals. Parties hereby voluntarily agree and bind themselves to execute and sign any and all documents to give effect to this Compromise Agreement.[11] cralaw On 31 July 2003, the trial court issued a partial judgment[12] cralaw approving the compromise agreement. On 30 March 2004, the trial court rendered a decision declaring the marriage void under Article 36 of the Family Code on the ground of mutual psychological incapacity of the parties. The trial court incorporated in its decision the compromise agreement of the parties on the issues of support, custody, visitation of the children, and property relations.

Meanwhile, petitioner cancelled the offer to purchase the Corinthian Hills Subdivision Lot No. 12, Block 2. She authorized Megaworld Corp. to allocate the amount of P11,992,968.32 so far paid on the said lot in the following manner: (a) P3,656,250.04 shall be transferred to fully pay the other lot in Corinthian Hills on Lot 11, Block 2; (b) P7,783,297.56 shall be transferred to fully pay the contract price in Unit 9H of the 8 Wack Wack Road Condominium project; and (c) P533,420.72 shall be forfeited in favor of Megaworld Corp. to cover the marketing and administrative costs of Corinthian Hills Subdivision Lot 12, Block 2.[13] cralaw Petitioner authorized Megaworld Corp. to offer Lot 12, Block 2 of Corinthian Hills to other interested buyers. It also appears from the records that petitioner left the country bringing the children with her. Respondent filed an omnibus motion seeking in the main custody of the children. The evidence presented by respondent established that petitioner brought the children out of the country without his knowledge and without prior authority of the trial court; petitioner failed to pay the P8,000,000 remaining balance for the Megaworld property which, if forfeited would prejudice the interest of the children; and petitioner failed to turn over to respondent documents and titles in the latters name. Thus, the trial court, in its 17 May 2004 resolution, awarded to respondent custody of the children, ordered petitioner to turn over to respondent documents and titles in the latters name, and allowed respondent to stay in the family dwelling in Mariposa, Quezon City. Petitioner filed on 28 June 2004 a motion for reconsideration[14] cralaw alleging denial of due process on account of accident, mistake, or excusable negligence. She alleged she was not able to present evidence because of the negligence of her counsel and her own fear for her life and the future of the children. She claimed she was forced to leave the country, together with her children, due to the alleged beating she received from respondent and the pernicious effects of the latters supposed gambling and womanizing ways. She prayed for an increase in respondents monthly support obligation in the amount of P150,000. Unconvinced, the trial court, in its 12 October 2004 Resolution,[15] cralaw denied petitioners motion for reconsideration, which was filed beyond the 15-day reglementary period. It also declared petitioner in contempt of court for non-compliance with the partial judgment and the 17 May 2004 resolution. The trial court also denied petitioners prayer for increase in monthly support. The trial court reasoned that since petitioner took it upon herself to enroll the children in another school without respondents knowledge, she should therefore defray the resulting increase in their expenses. On 4 November 2004, petitioner filed a motion to dismiss[16] cralaw and a motion for reconsideration[17] cralaw of the 12 October 2004 Resolution. She claimed she was no longer interested in the suit. Petitioner stated that the circumstances in her life had led her to the conclusion that withdrawing the petition was for the best interest of the children. She prayed that an order be issued vacating all prior orders and leaving the parties at the status quo ante the filing of the suit.

In its 28 December 2004 Resolution,[18] cralaw the trial court denied both the motion to dismiss and the motion for reconsideration filed by petitioner. It held that the 30 March 2004 decision and the 17 May 2004 resolution had become final and executory upon the lapse of the 15-day reglementary period without any timely appeal having been filed by either party. Undeterred, petitioner filed a motion for reconsideration of the 28 December 2004 resolution, which the trial court denied in its 15 February 2005 resolution.[19] cralaw The trial court then issued a Certificate of Finality[20] cralaw of the 30 March 2004 decision and the 17 May 2004 resolution. The Trial Courts Rulings The 30 March 2004 Decision[21] cralaw declared the marriage between the parties void under Article 36 of the Family Code on the ground of mutual psychological incapacity. It incorporated the 31 July 2003 Partial Judgment[22] cralaw approving the Compromise Agreement[23] cralaw between the parties. The 17 May 2004 Resolution[24] cralaw amended the earlier partial judgment in granting to respondent custody of the children, ordering petitioner to turn over to respondent documents and titles in the latters name, and allowing respondent to stay in the family dwelling in Mariposa, Quezon City. The15 February 2005 Resolution[25] cralaw denied petitioners motion for reconsideration of the 28 December 2004 Resolution[26] cralaw denying petitioners motion to dismiss and motion for reconsideration of the 12 October 2004 Resolution,[27] cralaw which in turn denied for late filing petitioners motion for reconsideration of the 17 May 2004 resolution. The Issue Petitioner raises the question of whether the 30 March 2004 decision and the 17 May 2004 resolution of the trial court have attained finality despite the alleged denial of due process. The Courts Ruling The petition has no merit. Petitioner contends she was denied due process when her counsel failed to file pleadings and appear at the hearings for respondents omnibus motion to amend the partial judgment as regards the custody of the children and the properties inher possession. Petitioner claims the trial court issued the 17 May 2004 resolution relying solely on the testimony of respondent. Petitioner further claims the trial court erred in applying to her motion to dismissSection 7 of the Rule on the Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. Petitioner argues that if indeed the provision is applicable, the same is unconstitutional for setting an obstacle to the preservation of the family. Respondent maintains that the 30 March 2004 decision and the 17 May 2004 resolution of the trial court are now final and executory and could no longer be reviewed, modified, or vacated. Respondent alleges petitioner is making a mockery of our justice system in disregarding our lawful processes. Respondent stresses neither petitioner nor her counsel appeared in court at the hearings on respondent's omnibus motion or on petitioners motion to dismiss.

The issue raised in this petition has been settled in the case of Tuason v. Court of Appeals. [28] cralaw In Tuason , private respondent therein filed a petition for the annulment of her marriage on the ground of her husbandspsychological incapacity. There, the trial court rendered judgment declaring the nullity of the marriage and awarding custody of the children to private respondent therein. No timely appeal was taken from the trial courts judgment. We held that the decision annulling the marriage had already become final and executory when the husband failed to appeal during the reglementary period. The husband claimed that the decision of the trial court was null and void for violation of his right to due process. He argued he was denied due process when, after failing to appear on two scheduled hearings, the trial court deemed him to have waived his right to present evidence and rendered judgment based solely on the evidence presented by private respondent. Weupheld the judgment of nullity of the marriage even if it was based solely on evidence presented by therein private respondent. We also ruled in Tuason that notice sent to the counsel of record is binding upon the client and the neglect or failure of the counsel to inform the client of an adverse judgment resulting in the loss of the latters right to appeal is not a ground for setting aside a judgment valid and regular on its face.[29] cralaw In the present case, the 30 March 2004 decision and the 17 May 2004 resolution of the trial court had become final and executory upon the lapse of the reglementary period to appeal.[30] cralaw Petitioners motion for reconsideration of the 17 May 2004 resolution, which the trial court received on 28 June 2004, was clearly filed out of time. Applying the doctrine laid down in Tuason , the alleged negligence of counsel resulting in petitioners loss of the right to appeal is not a ground for vacating the trial courts judgments. Further, petitioner cannot claim that she was denied due process. While she may have lost her right to present evidence due to the supposed negligence of her counsel,she cannot say she was denied her day in court. Records show petitioner, through counsel, actively participated in the proceedings below, filing motion after motion.Contrary to petitioners allegation of negligence of her counsel, we have reason to believe the negligence in pursuing the case was on petitioners end, as may be gleaned from her counsels manifestation dated 3 May 2004: Undersigned Counsel, who appeared for petitioner, in the nullity proceedings, respectfully informs the Honorable Court that she has not heard from petitioner since Holy Week. Attempts to call petitioner have failed. Undersigned counsel regrets therefore that she is unable to respond in an intelligent manner to the Motion (Omnibus Motion) filed by respondent.[31] cralaw Clearly, despite her counsels efforts to reach her, petitioner showed utter disinterest in the hearings on respondents omnibus motion seeking, among others, custody of the children. The trial judge was left with no other recourse but to proceed with the hearings and rule on the motion based on the evidence presented by respondent. Petitioner cannot now come to this Court crying denial of due process.

As for the applicability to petitioners motion to dismiss of Section 7 of the Rule on the Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, petitioner is correct. Section 7 of theRule on the Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages provides: SEC. 7. Motion to dismiss. No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or over the parties; provided, however, that any other ground that might warrant a dismissal of the case may be raised as anaffirmative defense in an answer. (Emphasis supplied) The clear intent of the provision is to allow the respondent to ventilate all possible defenses in an answer, instead of a mere motion to dismiss, so that judgment may be made on the merits. In construing a statute, the purpose or object of the law is an important factor to be considered.[32] cralaw Further, the letter of the law admits of no other interpretation but that the provision applies only to a respondent, not a petitioner. Only a respondent in a petition forthe declaration of absolute nullity of void marriage or the annulment of voidable marriage files an answer where any ground that may warrant a dismissal may be raised as an affirmative defense pursuant to the provision. The only logical conclusion is that Section 7 of the Rule does not apply to a motion to dismiss filed by the party who initiated the petition for the declaration of absolute nullity of void marriage or the annulment of voidable marriage. Since petitioner is not the respondent in the petition for the annulment of the marriage, Section 7 of the Rule does not apply to the motion to dismiss filed by her. Section 7 of the Rule not being applicable, petitioners claim that it is unconstitutional for allegedly setting an obstacle to the preservation of the family is without basis. Section 1 of the Rule states that the Rules of Court applies suppletorily to a petition for the declaration of absolute nullity of void marriage or the annulment of voidable marriage. In this connection, Rule 17 of the Rules of Court allows dismissal of the action upon notice or upon motion of the plaintiff, to wit: Section 1. Dismissal upon notice by plaintiff . A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. x x x Section 2. Dismissal upon motion of plaintiff . Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiffs instance save upon approval of the court and upon such terms and conditions as the court deems proper.x x x (Emphasis supplied) However, when petitioner filed the motion to dismiss on 4 November 2004, the 30 March 2004 decision and the 17 May 2004 resolution of the trial court had long become final and executory upon the lapse of the 15-day reglementary period without any timely appeal having been filed by either party. The 30 March 2004 decision and the 17 May 2004 resolution may no longer be disturbed on account of the belated motion to dismiss filed by petitioner. The trial court was correct in denying petitioners motion to dismiss.Nothing is more settled in law than that when a judgment becomes final and executory, it

becomes immutable and unalterable. The same may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law.[33] cralaw The reason is grounded on the fundamental considerations of public policy and sound practice that, at the risk of occasional error, the judgments or orders of courts must be final at some definite date fixed by law. Once a judgment has become final and executory, the issues there should be laid to rest.[34] cralaw WHEREFORE, we DENY the petition for review.We AFFIRMthe (i) 17 May 2004 Resolution amending the 30 March 2004 Decision and(ii) the 15 February 2005 Resolution of theRegional Trial Court of Quezon City, Branch 107, in Civil Case No. Q-01-45743. Costs against petitioner. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION A.M. No. MTJ-09-1729 (Formerly OCA I.P.I. No. 07-1910-MTJ) : January 20, 2009 NORYN S. TAN, Petitioner, vs. JUDGE MARIA CLARITA CASUGA-TABIN, Municipal Trial Court in Cities, Branch 4, Baguio City, Respondent.

Resolution AUSTRIA-MARTINEZ, J.: Noryn S. Tan (complainant) filed a Complaint dated April 2, 2007 against Judge Maria Clarita Casuga-Tabin (respondent) of the Municipal Trial Court in Cities (MTCC), Branch 4, Baguio City for denial of due process relative to Criminal Case No. 118628. Complainant avers: On November 9, 2006, the Philippine National Police (PNP) Quezon City Police District (QCPD) served her a warrant of arrest dated October 13, 2006, issued by the MTCC Baguio City, Branch 4, presided by respondent, relative to Criminal Case No. 118628 for alleged violation of Batas Pambansa Blg. 22. It was only then that she learned for the first time that a criminal case was filed against her before the court. She was detained at the Quezon City Hall Complex Police Office and had to post bail of P1,000.00 before the Office of the Executive Judge of the Regional Trial Court (RTC) of Quezon City for her temporary release. Upon verification, she learned that respondent issued on August 8, 2006 an Order directing her to appear before the court on October 10, 2006 for arraignment. It was sent by mail to PNP Quezon City for service to her. However, she did not receive

any copy of the Order and up to the present has not seen the same; hence, she was not able to attend her arraignment. She also found out that there was no proof of service of the Order or any notice to her of the arraignment. This notwithstanding, respondent issued a warrant for her arrest. Complainant alleges that she was deeply aggrieved and embarrassed by the issuance of the warrant for her arrest despite the fact that she was never notified of her arraignment. Complainant prayed that the appropriate investigation be conducted as to the undue issuance of a warrant for her arrest.[1] In her Comment[2]cralaw dated July 5, 2007, respondent answered: She issued the warrant of arrest because when the case was called for appearance, the complainant, as accused therein, failed to appear. Prior to the issuance of the warrant of arrest, her staff sent by registered mail the court's Order dated August 8, 2006 addressed to complainant through the Chief of Police, PNP, 1104, Quezon City directing complainant to appear on October 10, 2006 at 8:30 a.m. for the arraignment and preliminary conference in Criminal Case No. 118628, as proven by Registry Receipt No. 0310. It is true that the return on the court's Order dated August 8, 2006 had not yet been made by the QC Police on or before October 10, 2006. Nonetheless, she issued the warrant of arrest in good faith and upon the following grounds: (a) under Sec. 3 of Rule 131[3]cralaw of the Rules of Court, the court was entitled to presume that on October 10, 2006, after the lapse of a little over two months, official duty had been regularly performed and a letter duly directed and mailed had been received in the regular course of mail; and (b) Sec. 12 of the 1983 Rule on Summary Procedure in Special Cases provides that bail may be required where the accused does not reside in the place where the violation of the law or ordinance was committed. The warrant of arrest she issued was meant to implement this provision, which was not repealed by the 1991 Revised Rule on Summary Procedure, since complainant is a resident of Quezon City and not of Baguio City. If her interpretation was erroneous, she (respondent) believes that an administrative sanction for such error would be harsh and unsympathetic. She has nothing personal against complainant and did not want to embarrass or humiliate her. She issued the warrant in the honest belief that her act was in compliance with the rules. She prays that the case against her be dismissed and that a ruling on the interpretation of Secs. 10 & 12, of the 1983 Rule on Summary Procedure in Special Cases, in relation to Sec. 16 of the 1991 Revised Rule on Summary Procedure be made for the guidance of the bench and bar.[4]cralaw The OCA, in its agenda report dated September 28, 2007, recommended that the case be dismissed for lack of merit. It held: Prior to the filing of the information, a preliminary investigation was conducted by the provincial prosecutor resulting in the Resolution dated July 11, 2006 recommending the filing of the case; it was incredulous for complainant to claim that she came to learn for the first time of the filing of the criminal case when the warrant of arrest was served on her; furthermore, there was already a complete service of notice as contemplated in Sec. 10, Rule 13[5]cralaw of the Rules of Court; hence the requirement of notice was fully satisfied by the service of the Order dated August 8, 2006 and the completion of the service thereof.[6]cralaw Adopting the recommendation of the OCA, the Court on November 12, 2007 issued a Resolution dismissing the case for lack of merit.[7]cralaw

Complainant filed a Motion for Reconsideration dated January 8, 2008 alleging: The issue in this case was not whether complainant was aware of the criminal complaint against her, but whether the issuance of a warrant of arrest against her despite the absence of notice should be administratively dealt with; complainant was never notified of the arraignment; thus, she was not able to attend the same; respondent admitted in her Comment that no return had yet been made on or before October 10, 2006, the date respondent ordered the warrant to be issued; her explanation of good faith was therefore unjustifiable; neither could respondent invoke the presumption of regularity of performance of official duty, since the complainant did not actually receive any notice; respondent in an Order dated March 14, 2007 admitted that since she did not usually wear eyeglasses during hearings, she thought that the acknowledgment receipt at the back of the Order referred to the copy sent to complainant; later scrutiny, however, showed that it pertained to the one sent to the prosecutor's office; Section 10, Rule 13 of the Rules of Court did not apply to the instant case; the Order was addressed and sent to PNP Quezon City; assuming that the Order was properly served on the PNP, it was not equivalent to a service on complainant; there was no actual delivery of the Order to the complainant; hence, there was no personal service; neither was it served by ordinary mail or by registered mail; thus, the rule on completeness of service had not been satisfied; complainant was not aware of and therefore did not attend the preliminary investigation of her case; no proof can be shown that she was ever notified of the said preliminary investigation, much less of the filing of the same.[8] In a Resolution dated April 16, 2008, the Court required respondent to Comment on complainant's Motion for Reconsideration.[9]cralaw Complainant filed a Comment stating: Complainant's motion did not raise any new issue or ground that would merit the reconsideration of the Court's November 12, 2007 Resolution; complainant failed to rebut the presumption that she was notified of the scheduled arraignment; what complainant propounded was a mere self-serving denial that she never received the subpoena intended for her; there was no explanation why she would be able to receive a warrant of arrest; which was coursed in the same manner as the subpoena, in a little less than a month, but allegedly to receive the subpoena in almost two months; if complainant's assertion was to be believed, the effect would be to paralyze the operation of courts in the provinces that had to inevitably rely on the police resources of Metro Manila; arraignments could not proceed and trials could not go on; it was reasonable to follow as a rule that once a pleading or any other official document was received in the ordinary course of sending them, it must be presumed that others of the same nature were also delivered to the named addressees; to believe otherwise would be to delay justice for those residing outside Metro Manila.[10]cralaw The Court finds the Motion for Reconsideration to be impressed with merit. Whenever a criminal case falls under the Summary Procedure, the general rule is that the court shall not order the arrest of the accused, unless the accused fails to appear whenever required.[11]cralaw This is clearly provided in Section 16 of the 1991 Revised Rule on Summary Procedure which states: Sec. 16. Arrest of accused. - The court shall not order the arrest of the accused except for failure to appear whenever required. Release of the person arrested shall either be in bail or on recognizance by a responsible citizen acceptable to the court. (Emphasis supplied)

In this case, respondent claims that the issuance of a warrant for the arrest of complainant was justified, since complainant failed to appear during the arraignment in spite of an order requiring her to do so. Respondent admits, however, that a copy of the Order dated August 8, 2006, was sent to complainant through the Chief of Police, PNP, 1104, Quezon City. While it is true that the Rules of Court provides for presumptions, one of which is that official duty has been regularly performed, such presumption should not be the sole basis of a magistrate in concluding that a person called to court has failed to appear as required, which in turn justifies the issuance of a warrant for her arrest, when such notice was not actually addressed to her residence but to the police in her city. So basic and fundamental is a person's right to liberty that it should not be taken lightly or brushed aside with the presumption that the police through which the notice had been sent, actually served the same on complainant whose address was not even specified. Respondent further admitted in her Comment dated July 5, 2007 that when she proceeded with the arraignment on October 10, 2006 as scheduled, no return had yet been made by the Quezon City Police.[12]cralaw Nevertheless, she issued the warrant of arrest, arguing that she did so on the presumption that regular duty had been performed, and that the Order had been received in the regular course of mail; and since Sec. 12 of the 1983 Rules on Summary Procedure provides that bail may be required where the accused does not reside in the place where the violation of the law or ordinance was committed, the warrant of arrest she issued was justified since complainant is a resident of Quezon City and not of Baguio City. The Court disagrees. Sections 10 and 12 of the 1983 Rules on Summary Procedure in Special Cases (As Amended) state: Sec. 10. Duty of the Court. - On the basis of the complaint of information and the affidavits accompanying the same, the court shall make a preliminary determination whether to dismiss the case outright for being patently without basis or merit, or to require further proceedings to be taken. In the latter case, the court may set the case for immediate arraignment of an accused under custody, and if he pleads guilty, may render judgment forthwith. If he pleads not guilty, and in all other cases, the court shall issue an order, accompanied by copies of all the affidavits submitted by the complainant, directing the defendant(s) to appear and submit his counter-affidavit and those of his witnesses at a specified date not later than ten (10) days from receipt thereof.

Failure on the part of the defendant to appear whenever required, shall cause the issuance of a warrant for his arrest if the court shall find that a probable cause exists after an examination in writing and under oath or affirmation of the complainant and his witnesses. (Emphasis supplied) chanroblesvirtuallawlibrary

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Sec. 12. Bail not required; Exception. --- No bail shall be required except when a warrant of arrest is issued in accordance with Section 10 hereon or where the accused (a) is a recidivist; (b) is fugitive from justice; (c) is charged with physical injuries; (d) does not reside in the place where the violation of the law or ordinance was committed, or (e) has no known residence. Section 12 of the 1983 Rules on Summary Procedure was not reproduced in the 1991 Revised Rules on Summary Procedure, while Section 10 was revised and portions thereof reproduced in Sections 12[13]cralaw and 16 of the 1991 Rules on Summary Procedure. Granting, arguendo, that Sections 10 and 12 of the 1983 Rules on Summary Procedure in Special Cases were not repealed by the 1991 Revised Rules, still it does not justify the warrant of arrest issued in this case. Section 12 talks of instances when bails are required, one of which is when the accused does not reside in the place where the violation of the law or ordinance was committed. It does not state, however, that a warrant of arrest shall immediately issue even without actual notice to the accused. Respondent's interpretation ascribes to the rules those which were not expressly stated therein and unduly expands their meaning. The Court also notes that in an Order dated March 14, 2007, a copy of which was attached by complainant to her Motion for Reconsideration, respondent admitted that: As a point of clarification, during the hearing on October 10, 2006, when the case was called and the accused failed to appear, the Court verified from the staff if the Accused was notified to which said staff answered in the affirmative, showing to the Court a copy of the Order dated August 8, 2006, setting this case for Appearance of the Accused on October 10, 2006. At the back of the Order was an attached Acknowledgment Receipt. A quick glance of the said receipt, and without eyeglasses of the Presiding Judge, as she does not usually wear one during Court sessions, made this Court believed that indeed, that was the Acknowledgment Receipt proving that the Accused was served with a copy of the said Order. The attention of the Court was called upon receipt of the Accused's Motion for Clarification and a closer look on the Acknowledgment Receipt shows that the same was for the City Prosecutor's Office. x x x[14]cralaw (Emphasis supplied) From this, it can be inferred that respondent issued the warrant of arrest on the mistaken belief that complainant was actually notified of the arraignment. A closer scrutiny of the records however showed that the Acknowledgment Receipt pertained to the copy of the City Prosecutor's Office and not that of complainant's.

Whatever the real reasons behind respondent's issuance of complainant's warrant of arrest -- whether from the mistaken belief that complainant was actually notified, or the presumption that the police had served a copy of the order on complainant or that the rules allow immediate issuance of warrants of arrests whenever the accused does not reside in the locality where the crime was committed -- the fact is, respondent failed to uphold the rules, for which she should be held administratively liable. The Court has held that a judge commits grave abuse of authority when she hastily issues a warrant of arrest against the accused in violation of the summary procedure rule that the accused should first be

notified of the charges against him and given the opportunity to file his counter-affidavits and countervailing evidence.[15] While judges may not always be subjected to disciplinary action for every erroneous order or decision they render, that relative immunity is not a license to be negligent, abusive and arbitrary in their prerogatives. If judges wantonly misuse the powers vested in them by law, there will not only be confusion in the administration of justice but also oppressive disregard of the basic requirements of due process.[16]cralaw While there appears to be no malicious intent on the part of respondent, such lack of intent, however, cannot completely free her from liability.[17]cralaw When the law is sufficiently basic, a judge owes it to her office to know and simply apply it.[18] Considering that this is respondent's first administrative infraction in her more than 8 years of service in the judiciary,[19]cralaw which serves to mitigate her liability, the Court holds the imposition of a fine in the amount of P10,000.00 to be proper in this case.[20]cralaw WHEREFORE, Judge Maria Clarita Casuga-Tabin, Municipal Trial Court in Cities, Branch 4, Baguio City is hereby found guilty of abuse of authority for which she is fined in the sum of P10,000.00. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila

EN BANC ATTY. ROMEO L. ERECE, G.R. No. 166809 Petitioner, Present:

cralaw PUNO, C.J., cralawcralaw- versus - QUISUMBING, YNARES-SANTIAGO, CARPIO,*

AUSTRIA-MARTINEZ, LYN B. MACALINGAY, JOCELYN CORONA, BASTIAN, LYMAN B. SALVADOR, CARPIO MORALES, BIENVENIDO L. REANO, BRIGIDA AZCUNA, CECILIA R. ABRATIQUE, JEAN TINGA, CORTEZ-MARZAN, FRANCISCO CHICO-NAZARIO, M. BILOG, ROSA P. ESPIRITU,cralawcralawVELASCO, JR., ROLANDO EBREO, YANIE A. NACHURA, PITLONGAY, and VIRGILIOcralaw REYES, MAGPOC, LEONARDO-DE CASTRO, and Respondents. BRION, JJ.

Promulgated: cralawApril 22, 2008 X -------------------------------------------------------------------------------------- X

DECISION

AZCUNA, J.:

This is a petition for review on certiorari[1] of the Decision of the Court of Appeals (CA) promulgated on January 7, 2005 affirming the Decision of the Civil Service Commission (CSC) which found petitioner Atty. Romeo L. Erece guilty of dishonesty and conduct prejudicial to the best interest of the service.

The facts are as follows:

Petitioner is the Regional Director of the Commission on Human Rights (CHR) Region I, whose office is located in San Fernando City, La Union. Respondent employees of the CHR Region I filed an Affidavit-Complaint dated October 2, 1998 against petitioner alleging that he denied them the use of the office vehicle assigned to petitioner, that petitioner still claimed transportation allowance even if he was using the said vehicle, and that he certified that he did not use any government vehicle, when in fact he did, in order to collect transportation allowance. The Affidavit-Complaint reads: xxx 4.cralawThat on September 10, 1998, we, Atty. Lynn Macalingay and Mr. Lyman Salvador were denied the use of the office vehicle as evidenced by the hereto attached copy of our denied Itinerary of Travel marked as Annex B;

5. That on August 5, 1998, I, Brigida Abratique requested for the use of the government vehicle but the same was denied by Atty. Erece for the reason that we would be using the same to Teachers Camp as evidenced by a copy of the denied trip ticket with the marginal notes of Atty. Erece hereto attached as Annex C;

6. That on May 29, 1998, the request of Brigida Cecilia Abratique and Francisco Bilog to use the vehicle within the City for field work purposes was again denied by Atty. Erece as he will accordingly use the same;

7. That on April 20, 1998, a proposed trip was likewise postponed by Atty. Erece on the ground that he will be using the vehicle as evidenced by a copy of the proposed Itinerary of Travel with marginal note of Atty. Erece xxx;

8. That on April, 1997, I, Atty. Jocelyn Bastian requested for the use of the vehicle as I need[ed] to go to the Benguet Provincial Jail but I was instructed to commute because he will use the vehicle. To my dismay, I found him still in the office when I returned from the Provincial Jail;

9. That such denials of the use of the vehicle are not isolated cases but were just a few of the numerous instances of conflicts of schedules regarding the use of the government vehicle and where we found ourselves always at the losing end because we are the subordinate employees;

xxx

13.cralawThat Atty. Erece regularly receives and liquidates his Representation and Transportation Allowances (RATA) which at present is in the amount of FOUR THOUSAND PESOS (P4,000.00), the payroll of such and its liquidation could be made available upon request by an authority to the Resident Auditor but his liquidations for the month of April 1998 and September 1998 [are] hereto attached xxx;

14.cralawThat despite regular receipt of his RATA, Atty. Erece still prioritizes himself in the use of the office vehicle to the detriment of the public service;

15.cralawThat to compound things, he certifies in his monthly liquidation of his RATA that HE DID NOT USE ANY GOVERNMENT VEHICLE FOR THE SAID MONTH xxx which is a big lie because as already stated, he is the regular user of the government vehicle issued to CHR, Region I;

16.cralawThat I, Rolando C. Ebreo, the disbursing officer of the Regional Field Office hereby attest to the fact that no deductions in the RATA of Atty. Romeo L. Erece was ever done in connection with his regular use of the government vehicle x x x.[2]

The CSC-Cordillera Administrative Region issued an Order dated October 9, 1998, directing petitioner to comment on the complaint.

In compliance, petitioner countered, thus:

xxx

4.cralawIn relation to paragraphs 2-D, 2-E and 2-G above cited, it is among the duties as per management supervisory function of the Regional HR Director to approve use or non-use of the official vehicle of the Region as it was memorandum receipted to him and the non-approval of the use of the same if it is not arbitrary and for justifiable reasons; said function of approval and disapproval rests on the Regional Human Rights Director and that function is not merely ministerial;

5.cralawThat I have issued a guideline that the official vehicle will not be used for the Mountain Provinces and Halsema Highway/Mountain Trail because of the poor road condition and to prevent breakdown and early deterioration of same xxx;

6.cralawThat Atty. Lynn B. Macalingay, one of the complainants had gone to Mt. Province to attend the Provincial Peace and Order Council meetings, conduct jail visitations and follow-up cases on many occasions using the regular bus trips in the spirit of the policy as mentioned in paragraph 4 xxx;

7.cralawThat all employees had used the vehicle on official business without exception, all complainants included xxx;

8.cralawOn September 10, 1998, Atty. Lynn Macalingay and Lyman Salvador had the use of the vehicle disapproved for the reasons conforming to paragraph 4 xxx;

9.cralawOn August 5, 1998, Atty. Erece disapproved the use of vehicle for use of Brigida Abratique because:

a)cralawThe vehicle was available since July 30, 1998 for use in Happy Hallow but not utilized earlier xxx; cralaw b)cralawOn August 6, 1998, a DECS-CHR Seminar on Use Human Rights Exemplar was held at the Teachers Camp Baguio City and the vehicle was used to transport HR materials, overhead projector and for the overall use of the seminar upon the request of the Public Information and Education Office, Central Office, Commission on Human Rights through Susan Nuguid of CHR, Manila;

xxx d) That Mrs. Abratique and Co. were asked to explain the unreasonable delay to attend to the case of Cherry Esteban which was subject of the disapproved travel;

10. cralawOn April 20, 1998, the itinerary of travel of Lyman Salvador was RESCHEDULED from April 22 & 23, 1998 to April 23 & 24, 1998 as the vehicle was used by Atty. Erece on an important travel to Manila upon order of no less than the Honorable Chairperson, Aurora Navarette-Recia of Commission on Human Rights xxx;

xxx

12. As to the use of the vehicle by the Regional HR Director, same shall be subject to the allowance/disallowance of the COA Resident Auditor, likewise the Regional HR Director in all his travels outside Baguio City, he does not claim bus and taxi fares per certification of Danilo Balino, the Administrative Officer Designate and Mr. Rolando Ebreo, the Cash Disbursing Officer, Annex Z;

13. In many cases, Atty. Romeo L. Erece has to maintain the vehicle including car washing thereof, garage parking at his residence to maintain and upkeep the vehicle and same is still in premium condition to the satisfaction of the office at no extra cost to the Commission;

xxx

15. In support thereof, we move to dismiss this case as pure question on supervisory and management prerogative, which is reserved for the Office Head and a harassment move by disgruntled employees who are counter-charged hereof;

16. Annexes E and F of the complaint [are] misplaced and misleading because a clear and cognate reading of same does not reflect that I checked/marked the use of government vehicle in the certification and as such no dishonesty is involved; the documents speak for themselves. x x x Annex E is for the month of April, 1998 where the check marks are clear. On Annex F of the complaint, no reference is made as to the fact that I did not use the government vehicle, if so, no allegation as to when I did use same for my personal use.[3]

After a fact-finding investigation, the CSC Proper in CSC Resolution No. 99-1360 dated July 1, 1999 charged petitioner with Dishonesty and Grave Misconduct for using a government vehicle in spite of

his receipt of the monthly transportation allowance and for certifying that he did not use any government vehicle, when in fact, he did, in order to receive the transportation allowance.

Pertinent portions of the formal charge read:

1. cralawThat despite the regular receipt of Erece of his monthly Representation and Transportation Allowance (RATA) in the amount of P4,000.00, he still prioritizes himself in the use of the office vehicle (Tamaraw FX) in spite of the directive from the Central Office that he cannot use the service vehicle for official purposes and at the same time receive his transportation allowance;

2. cralawThat Erece did not comply with the directive of the Central Office addressed to all Regional Human Rights Directors, as follows: to regularize your receipt of the transportation allowance component of the RATA to which you are entitled monthly, you are hereby directed to immediately transfer to any of your staff, preferably one of your lawyers, the memorandum receipt of the vehicle(s) now still in your name;

3. cralawThat he certified in his monthly liquidation of his RATA that he did not use any government vehicle for the corresponding month, which is not true because he is the regular user of the government vehicle issued to CHR-Region I.

The foregoing facts and circumstances indicate that government service has been prejudiced by the acts of Erece.

WHEREFORE, Romeo L. Erece is hereby formally charged with Dishonesty and Grave Misconduct. Accordingly, he is given five (5) days from receipt hereof to submit his Answer under oath and affidavits of his witnesses, if any, to the Civil Service Commission-Cordillera Administrative Region (CSC-CAR). On his Answer, he should indicate whether he elects a formal investigation or waives his right thereto. Any Motion to Dismiss, request for clarification or Bills of Particulars shall not be entertained by the Commission. Any of these pleadings interposed by the respondent shall be considered as an Answer and shall be evaluated as such. Likewise, he is advised of his right to the assistance of counsel of his choice.[4] After a formal investigation of the case, the CSC issued Resolution No. 020124, dated January 24. 2002, finding petitioner guilty of dishonesty and conduct prejudicial to the best interest of the service and penalizing him with dismissal from the service.

Petitioner filed a petition for review of the CSC Resolution with the CA. In the Decision promulgated on January 7, 2005, the CA upheld the CSC Resolution, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the petition is DENIED and the assailed Resolutions of the Civil Service Commission are hereby AFFIRMED.[5] Hence, this petition. Petitioner raises these issues: 1. Whether or not the Court of Appeals erred in ruling that petitioner was not denied due process despite the admitted facts that respondents failed to identify and testify on their AffidavitComplaint and that petitioner was denied of his right to cross-examine respondents on their AffidavitComplaint.

2. Whether or not the Court of Appeals was correct in adopting in toto the conclusions of the CSC although they were based on mere assumptions

Petitioner contends that he was denied due process as he was not afforded the right to cross-examine his accusers and their witnesses. He stated that at his instance, in order to prevent delay in the disposition of the case, he was allowed to present evidence first to support the allegations in his Counter-Affidavit. After he rested his case, respondents did not present their evidence, but moved to submit their position paper and formal offer of evidence, which motion was granted by the CSC over his (petitioners) objection. Respondents then submitted their Position Paper and Formal Offer of Exhibits.

Petitioner submits that although he was allowed to present evidence first, it should not be construed as a waiver of his right to cross-examine the complainants. Although the order of presentation of evidence was not in conformity with the procedure, still petitioner should not be deemed to have lost his right to cross-examine his accusers and their witnesses. This may be allowed only if he expressly waived said right.

The Court agrees with the CA that petitioner was not denied due process when he failed to crossexamine the complainants and their witnesses since he was given the opportunity to be heard and

present his evidence. In administrative proceedings, the essence of due process is simply the opportunity to explain ones side.[6]

Velez v. De Vera[7] held: Due process of law in administrative cases is not identical with judicial process for a trial in court is not always essential to due process. While a day in court is a matter of right in judicial proceedings, it is otherwise in administrative proceedings since they rest upon different principles. The due process clause guarantees no particular form of procedure and its requirements are not technical. Thus, in certain proceedings of administrative character, the right to a notice or hearing are not essential to due process of law. The constitutional requirement of due process is met by a fair hearing before a regularly established administrative agency or tribunal. It is not essential that hearings be had before the making of a determination if thereafter, there is available trial and tribunal before which all objections and defenses to the making of such determination may be raised and considered. One adequate hearing is all that due process requires. . . .

The right to cross-examine is not an indispensable aspect of due process. Nor is an actual hearing always essential. . . . [8]

Next, petitioner contends that the CA erred in adopting in toto the conclusions of the CSC.

Petitioner contends that the conclusion of the CSC proceeded from the premise that the petitioner was using the subject vehicle as his service vehicle, which he disputes, because he did not use the vehicle regularly. The evidence showed that the service vehicle was being used by the employees of the regional office for official purposes. He argues that although the service vehicle is still in his name, it should not be concluded that it is assigned to him as his service vehicle, thus disqualifying him from receiving transportation allowance.

The Court is not persuaded. The pertinent conclusion of the CSC referred to by petitioner reads:

At the outset, it must be stated that the entitlement to transportation allowance by certain officials and employees pursuant to RA 6688 presupposes that they are not assigned government vehicles. This was clarified by the Supreme Court in the case of Aida Domingo vs. COA, G.R. No. 112371, October 7, 1998, where it ruled, as follows:

The provision of law in point is found in Section 28 of Republic Act 6688, otherwise known as the General Appropriations Act of 1989, to wit:

Sec. 28. Representation and Transportation Allowances. ... The transportation allowance herein authorized shall not be granted to officials who are assigned a government vehicle or use government motor transportation, except as may be approved by the President of the Philippines. Unless otherwise provided by law, no amount appropriated in this Act shall be used to pay for representation and/or transportation allowances, whether commutable or reimbursable, which exceed the rates authorized under this Section. Previous administrative authorization not consistent with the rates and conditions herein specified shall no longer be valid and payment shall not be allowed.

xxx

In the case of Bustamante vs. Commission on Audit, 216 SCRA 134, decided by this Court on November 27, 1992, COA also disallowed the claim for transportation allowance of the legal counsel of National Power Corporation because he was already issued a government vehicle. Involving the circular aforementioned and almost the same facts as in this case, it was therein held that COA Circular No. 75-6 is categorical in prohibiting the use of government vehicles by officials receiving transportation allowance and in stressing that the use of government motor vehicle and claim for transportation allowance are mutually exclusive and incompatible.

The issue need no longer be belabored for no less than this Court ruled in the aforesaid case that a government official, to whom a motor vehicle has been assigned, cannot, at the same time, claim transportation allowance. (Underscoring supplied)

It is clear from the records that Director Edmundo S. Ancog, CHR-Central office (Field Operations office), issued a Memorandum dated February 27, 1998, addressed to all CHR Regional Directors in respect to Transportation Allowance. The Memorandum states that transportation allowance shall not be granted to Regional Directors whenever a government vehicle or use of government motor transportation is already assigned to them. It further emphasized that should they want to avail regularization of their RATA, the Regional Directors must immediately transfer the vehicle to any of their staff/lawyer.

Records show that Erece was issued a government vehicle since August 10, 1997 and he did not transfer the vehicle to any of his staff. Notwithstanding this fact and the said memorandum, he received transportation allowance particularly for the months of April and September 1998, as reflected in the Certification/s signed by him. This clearly resulted in undue prejudice to the best interest of the service.

The foregoing facts logically lead to the conclusion that the act of Erece in certifying that he has not used any government vehicle and consequently collecting Transportation Allowance despite the fact that a government vehicle was assigned to him constitutes the offenses of Dishonesty and Conduct Prejudicial to the Best Interest of the Service.[9]

The above conclusion,as well as the Memorandum dated February 27, 1998 issued by Director Ancog to the CHR Regional Directors, are both very clear. Once a vehicle is assigned to a regional director, like petitioner, he is no longer entitled to transportation allowance unless he assigns the vehicle to another staff/lawyer. Since petitioner did not assign the subject vehicle assigned to him to someone else, he is not entitled to transportation allowance.

Contrary to the argument of petitioner, there is no qualification that the assigned vehicle should be for the exclusive use of the service vehicle of the regional director alone to disqualify him from receiving transportation allowance.

Since the records show that petitioner collected transportation allowance even if a government vehicle had been assigned to him, the CA did not err in sustaining the decision of the CSC finding petitioner guilty of dishonesty and conduct prejudicial to the best interest of the service and penalizing him with dismissal from the service.

WHEREFORE, the petition is denied. The Decision of the Court of Appeals promulgated on January 7, 2005 is AFFIRMED. No costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila

EN BANC

DATU PAX PAKUNG S. MANGUDADATU, Petitioner,

G.R. No. 179813

Present:

Puno, C.J., Quisumbing, Ynares-Santiago, CARPIO, AUSTRIA-MARTINEZ, - versus CORONA,* CARPIO MORALES, azcuna, TINGA, chico-nazario, velasco, jr., nachura, REYES, THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and ANGELO O. LEONARDO-DE CASTRO, and

MONTILLA, Respondents.

BRION, JJ.

Promulgated:

December 18, 2008

x-----------------------------------------------------------------------------------------x

DECISION

LEONARDO-DE CASTRO, J.:

Before us is a petition for certiorari with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction[1] assailing Resolution Nos. 07-179[2] dated August 16, 2007 and 07300[3] dated September 19, 2007, of the House of Representatives Electoral Tribunal (HRET) in HRET Case No. 07-021, entitled Angelo O. Montilla v. Datu Pax Pakung S. Mangudadatu. Datu Pax Pakung S. Mangudadatu (petitioner) and Angelo O. Montilla (private respondent) were congressional candidates for the First District of Sultan Kudarat during the May 14, 2007 national elections. Petitioner won by 17,451 votes and was proclaimed on May 22, 2007 by the Provincial Board of Canvassers as the duly elected Representative of the said congressional district.

On May 31, 2007, respondent filed with the HRET a Petition of Protest (Ad Cautelam)[4] contesting the results of the elections and the proclamation of petitioner. On June 14, 2007, the Secretary of the HRET caused the service of summons[5] upon petitioner through registered mail at Purok Losaria,[6] Tamnag (Poblacion), Lutayan, Sultan Kudarat, requiring petitioner to file an Answer to the protest within ten (10) days from receipt thereof. On July 11, 2007, the HRET received the Registry Return Receipt Card,[7] showing that a certain Aileen R. Baldenas[8] (Baldenas) received the summons on June 27, 2007. On August 16, 2007, the HRET issued Resolution No. 07-179[9] which noted the aforementioned Registry Return Receipt Card and that despite the fact that 43 days from June 27, 2007 had passed since Baldenas received the summons, petitioner had not filed an answer in accordance with Rule 27[10] of the 2004 HRET Rules. In the same Resolution, the HRET considered petitioner to have entered a general denial of the allegations of the protest. In an Order dated August 17, 2007, the HRET set the preliminary conference on September 27, 2007 at 11:00 a.m. Meanwhile, petitioner informally learned of respondents protest, prompting petitioner to request his lawyers to verify the same from the records of the HRET. Thereafter, his lawyers entered their appearance on September 4, 2007 and requested that they be furnished with copies of the petition of protest as well as notices, orders and resolutions pertaining to the protest. On September 10, 2007, petitioner filed a Motion to Reconsider[11] Resolution No. 07-179 and Motion to Admit Answer with Counter-Protest, alleging that he never received the summons issued by the HRET. In his affidavit[12] attached to the motion, petitioner denied that Baldenas was a member of his household or his employee. He further claimed that she was not authorized to receive any important documents addressed to him. And assuming that he had authorized her, the summons received by her was never brought to his attention. On September 19, 2007, the HRET issued Resolution No. 07-300[13] denying for lack of merit, petitioners Motion to Reconsider Resolution No. 07-179, as well as his Motion to Admit Answer with Counter-Protest, the latter for having been filed out of time. The HRET explained that: cralawIn the instant case, the recipient, Ailene R. Baldenas, could not have received the summons had she not been found in said address or had she not been present therein as to have been in a position to have acted in behalf of the resident of the house, the protestee herein. The act of a person in receiving a mail matter cannot be easily defied by simply denying that the receipt was unauthorized. We doubt protestees self-serving allegation of lack of knowledge of Ailene R. Baldenas. This denial of authority, or of knowledge of the recipients identity must be supported by conclusive proof, the burden of which belongs to no other than the one making such assertion, the protestee himself. The ruling cited by protestee in J.M. Tuason & Co. vs. Fernandez does not apply herein as the summons was served at protestees residence and not just at any house owned by him. In that case, service of summons was made in a house, but not the defendants residence or dwelling place. Thus, such service was ineffective

and improper which is not the case herein as the service of the summons was made to protestees residence in the province. cralawThe records of the case bear that protestees residence is Purok Lo[sa]ria, Tamnag (Poblacion), Lutayan, Sultan Kudarat. Aside from the protest, a Manifestation filed by protestant to submit the Roll of Attorneys Numbers of his counsels indicates that a copy thereof was sent to the same address on June 5, 2007, through registered mail. The summons was sent and was received at the same address stated in the protest. Accordingly, the registry return receipt card shows proper receipt by Ailene R. Baldena[s] on June 27, 2007. In all instances of posting, either by protestant or by the Tribunal, the presumption is that mailed matters were duly received by the addressee, by himself or his representatives. The Tribunal should not be taken to task to ascertain or cause the Postmasters personnel to first determine whether or not the person receiving was or was not known to protestee. With the proof of service, such as the registry return receipt card, at hand, the Tribunal is satisfied that jurisdiction was acquired over protestee. After the preliminary conference on September 27, 2007, the HRET issued a Preliminary Conference Order, of even date, granting respondents motion for the revision of ballots and directing the Secretary of the HRET to conduct the same in all or 100% of the protested precincts in the instant case. The HRET also noted petitioners manifestation in open court that his participation in the preliminary conference was without prejudice to whatever legal remedies he may avail for the reconsideration of Resolution No. 07-300 dated September 13, 2007, denying his Motion to Reconsider Resolution No. 07-179 with Motion to Admit Answer with Counter-Protest. Petitioner filed the instant petition imputing grave abuse of discretion amounting to lack of jurisdiction on the part of the HRET for issuing Resolution Nos. 07-179 and 07-300. He also prayed for a temporary restraining order and/or a writ of preliminary injunction for this Court to enjoin the HRET from further proceeding with HRET Case No.07-021. Petitioner contended that the HRET never acquired jurisdiction over his person because of the absence of a valid service of summons. He argued that a substitute service of summons is made only when the defendant cannot be served personally at a reasonable time after efforts to locate him have failed.[14] In his case, since the process servers return failed to show on its face the impossibility of personal service, then the substituted service was improper and invalid. In the Resolution of this Court dated October 16, 2007, we required respondent to file his comment on the petition for certiorari within a non-extendible period of ten (10) days from notice. In his comment, respondent countered that the HRET did not commit grave abuse of discretion in issuing Resolution Nos. 07-179 dated August 16, 2007 and 07-300 dated September 19, 2007. He argued that Rule 22 of the 2004 HRET Rules merely states that the Secretary of the Tribunal shall issue the corresponding summons to the protestee or respondent, as the case may be. He posited then that the intent of the HRET in not expressly specifying personal service of summons on the protestee or respondent was to give it a reasonable discretion or leeway in serving the summons by other means such as registered mail. Thus, service of summons on petitioner through registered mail did not violate

Rule 22 of the 2004 HRET Rules. Further, respondent claimed that Rule 14, Sections 6 and 7 of the Rules of Court were inconsistent with Rule 22 of the 2004 HRET Rules and therefore should not be given suppletory application to HRET proceedings. Petitioner, in his reply, posited that Rule 22 of the 2004 HRET Rules was not inconsistent with Sections 6 and 7 of Rule 14 of the Rules of Court. According to petitioner, the Secretary of the Tribunal is equivalent to the Clerk of Court, and both the regular courts and the HRET have process servers and sheriffs who may serve notices, orders, and summons. Petitioner further contends that there is nothing in the 2004 HRET Rules that allows service of summons by registered mail and strongly asserts that service of summons by registered mail is susceptible to fraud and manipulation. We grant the petition. Rule 22 of the 2004 HRET Rules provides: RULE 22. Summons. If the petition is not summarily dismissed in accordance with Rule 21 of these Rules, the Secretary of the Tribunal shall issue the corresponding summons to the protestee or respondent, as the case may be, together with a copy of the petition, requiring him within ten (10) days from receipt thereof to file his answer.

cralaw The 2004 HRET Rules on summons is silent on how the summons should be served on the protestee. Significantly, Rule 80[15] of the 2004 HRET Rules provides that the 1997 Rules of Civil Procedure applies by analogy or suppletorily in so far as the latter may be applicable and not inconsistent therewith as well as with the orders, resolutions and decisions of the HRET. In view of the failure of the HRET Rules to specify the authorized modes of service of summons, resort then is necessary to Sections 6 and 7, Rule 14, 1997 Rules of Civil Procedure, which state:

SEC. 6. Service in person on defendant. Whenever practicable, the summons shall be served handling a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him.

SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendants residence with some person of suitable age and discretion then

residing therein, or (b) by leaving copies at defendants office or regular place of business with some competent person in charge thereof.

In the case at bar, the service of the summons was made through registered mail, which is not among the allowed modes of service under Rule 14 of the Rules of Court. In Federico S. Sandoval II v. House of Representatives Electoral Tribunal (HRET) and Aurora Rosario A. Oreta,[16] this Court has held that in the matter of service of summons, Sections 6 and 7, Rule 14 of the Rules of Court apply suppletorily to the rules of the HRET. To quote from that case: cralawThe matter of serving summons is governed by the 1997 Rules of Civil Procedure which applies suppletorily to the Revised Rules of the House of Representatives Electoral Tribunal through its Rule 80.23 Sections 6 and 7 of Rule 14 of the 1997 Rules of Civil Procedure provide Sec. 6. Service in person on defendant. - Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. Sec. 7. Substituted service. - If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. cralawIt is well-established that summons upon a respondent or a defendant (i.e., petitioner herein) must be served by handing a copy thereof to him in person or, if he refuses to receive it, by tendering it to him. Personal service of summons most effectively ensures that the notice desired under the constitutional requirement of due process is accomplished. If however efforts to find him personally would make prompt service impossible, service may be completed by substituted service, i.e., by leaving copies of the summons at his dwelling house or residence with some person of suitable age and discretion then residing therein or by leaving the copies at his office or regular place of business with some competent person in charge thereof. cralawSubstituted service derogates the regular method of personal service. It is an extraordinary method since it seeks to bind the respondent or the defendant to the consequences of a suit even though notice of such action is served not upon him but upon another to whom the law could only presume would notify him of the pending proceedings. As safeguard measures for this drastic manner of bringing in a person to answer for a claim, it is required that statutory restrictions for substituted service must be strictly, faithfully and fully observed. In our jurisdiction, for service of summons to be valid, it is necessary first to establish the following circumstances, i.e., (a) impossibility of service of summons within a reasonable time, (b) efforts exerted to locate the petitioners and, (c)

service upon a person of sufficient age and discretion residing therein or some competent person in charge of his office or regular place of business. It is also essential that the pertinent facts proving these circumstances be stated in the proof of service or officers return itself and only under exceptional terms may they be proved by evidence aliunde. Failure to comply with this rule renders absolutely void the substituted service along with the proceedings taken thereafter for lack of jurisdiction over the person of the defendant or the respondent. cralawWe find no merit in respondent Oretas austere argument that personal service need not be exhausted before substituted service may be used since time in election protest cases is of the essence. Precisely, time in election protest cases is very critical so all efforts must be realized to serve the summons and a copy of the election protest by the means most likely to reach the protestee. No speedier method could achieve this purpose than by personal service thereof. As already stated, the preferential rule regarding service of summons found in the Rules of Court applies suppletorily to the Revised Rules of the House of Representatives Electoral Tribunal. Hence, as regards the hierarchy in the service of summons, there ought to be no rational basis for distinguishing between regular court cases and election protest cases pending before the HRET. (emphasis and underscoring supplied)

Indeed the doctrine in Sandoval has been reiterated by this Court in subsequent decisions to reiterate that in ordinary civil cases, personal service of summons is preferred and resort to substituted service not only must be fully justified but also comply strictly with requirements of the Rules of Court for substituted service.[17] In the early case of Olar v. Cuna,[18] we held that: In the case at bar, the summons were served by registered mail, which is not among the modes of service under Rule 14 of the Revised Rules of Court. Besides, under Section 5 of aforesaid rule, the summons "may be served by the sheriff or other proper officer of the province in which the service is to be made, or for special reasons by any person especially authorized by the judge of the court issuing the summons." The postmaster of Bato, Leyte, not being a sheriff or court officer, or a person authorized by the court to serve the summons cannot validly serve the summons. The petitioners, therefore, were not duly served with the summons in Civil Case No. B-674. Indeed, if in ordinary civil cases (which involve only private and proprietary interests) personal service of summons is preferred and service by registered mail is not allowed on jurisdictional and due process grounds, with more reason should election cases (which involve public interest and the will of the electorate) strictly follow the hierarchy of modes of service of summons under the Rules of Court. We note that the HRET, in its Resolution No. 07-300, justified its resort to registered mail in this wise:

In cases filed before the Tribunal involving distant legislative districts and provinces, it has been its practice to serve the summons through registered mail, it being impracticable to send the same by personal service to protestees or respondents who reside in said far provinces. Since protestee resides in Sultan Kudarat, summons was served to him through registered mail.

We do not agree. The Court sees no reason why the HRET cannot make use of its own process servers to personally serve the summons, or alternatively, delegate the matter to the process server of a court with territorial jurisdiction over the place of residence of the respondent/protestee in the election case, at the expense of the petitioner/protestant. Considering that the proper service of summons on the respondent/protestee is a jurisdictional requirement and goes to heart of due process, we cannot allow service of summons by a method not sanctioned by the HRET Rules in relation to the Rules of Court. In view of the foregoing, we find that the HRET committed grave abuse of discretion in considering petitioner to have entered a general denial of the allegations in respondents petition of protest and in denying his motion to reconsider as well as his motion to admit answer with counter-protest. WHEREFORE, the petition for certiorari is hereby GRANTED. Resolution Nos. 07-179 and 07-300 of the House of Representatives Electoral Tribunal (HRET) in HRET Case No. 07-021 are SET ASIDE and the HRET is directed to admit the Answer with Counter-Protest of petitioner Datu Pax Pakung S. Mangudadatu. No pronouncement as to costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila

EN BANC

DEPARTMENT OF EDUCATION,

G.R. No. 169013

represented by its Officer-in-Charge and Undersecretary, RAMON C. BACANI, Petitioner, PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, - versus TINGA, CHICO-NAZARIO, VELASCO, Jr., NACHURA, REYES, DE CASTRO, and BRION, JJ. Present:

GODOFREDO G. CUANAN, Respondent.

Promulgated: December 16, 2008

x-----------------------------------------------------------x

DECISION

AUSTRIA-MARTINEZ, J.

cralawBefore the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the Decision[1] dated May 16, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 87499 which set aside Resolution No. 041147 dated October 22, 2004 of the Civil Service Commission (CSC) finding respondent Godofredo G. Cuanan (Cuanan) guilty of sexual harassment and dismissing him from service, and the CA Resolution[2] dated July 18, 2005 which denied the Motion for Reconsideration of the Department of Education (DepEd).

cralawThe factual background of the case is as follows:

cralawOn March 11, 1996, Luzviminda Borja and Juliana Castro, on behalf of their respective minor daughters, Lily Borja and Charo Castro, filed before the Department of Education, Culture and Sports Regional Office No. III (DECS-RO No. III), Cabanatuan City, two separate administrative complaints[3] for Sexual Harassment and Conduct Unbecoming a Public Officer against Cuanan, then Principal of Lawang Kupang Elementary School in San Antonio, Nueva Ecija.

cralawActing on the complaints, DECS-RO No. III Regional Director Vilma L. Labrador constituted an Investigating Committee, composed of three DepEd officials from the province, to conduct a formal investigation. Following the investigation, the Investigating Committee submitted its Investigation Report[4] dated December 14, 1999, finding Cuanan guilty of sexual harassment and recommending his forced resignation without prejudice to benefits. In a Decision[5] dated January 28, 2000, Regional Director Labrador concurred in the findings of the Investigating Committee and meted out the penalty of forced resignation to Cuanan without prejudice to benefits.

cralawIn an Order[6] dated April 13, 2000, then DepEd Secretary Andrew Gonzales affirmed the Decision of Regional Director Labrador. On May 30, 2000, Cuanan filed a Petition for Reconsideration[7] thereof, but the same was denied for lack of merit by Secretary Gonzales in a Resolution[8] dated June 19, 2000. cralawCuanan elevated his case to the CSC. On January 20, 2003, the CSC issued Resolution No. 030069,[9] which set aside the June 19, 2000 Resolution of Secretary Gonzales and exonerated Cuanan from the charge of sexual harassment. On January 23, 2003, copies of the resolution were duly sent to

the parties, including the DepEd.[10] Cuanan received a copy of Resolution No. 030069 on January 31, 2003.[11]

cralawIn a Letter dated February 3, 2003, Cuanan requested his reinstatement as Elementary School Principal I.[12] In a 1st Indorsement, the District Supervisor recommended appropriate action.[13] In a 2nd Indorsement dated February 4, 2003, Schools Division Superintendent Dioscorides D. Lusung (Superintendent) recommended that Cuanan be reinstated to duty as School Principal of San Antonio District upon finality of the decision of the CSC.[14] In a Letter[15] dated February 10, 2003, Regional Director Ricardo T. Sibug informed the Superintendent that Cuanan could not be immediately reinstated to the service until an order of implementation was received from the Department Secretary.

cralawSometime in March 2003, DepEd Undersecretary Jose Luis Martin C. Gascon sent a letter to the CSC requesting a copy of CSC Resolution No. 030069 dated January 20, 2003. In a Letter[16] dated March 25, 2003, the CSC informed the DepEd that a copy of the requested resolution was duly sent to it on January 23, 2003. Nonetheless, the CSC sent another copy of the resolution to the DepEd for its reference. The DepEd received said reference copy on March 28, 2003.[17]

cralawOn April 11, 2003, then DepEd Secretary Edilberto C. de Jesus filed a Petition for Review/Reconsideration[18] with the CSC. No copy of the pleading was served upon Cuanan.

cralawOn July 29, 2003, Secretary De Jesus filed a Supplemental Petition for Review/Reconsideration[19] reiterating the prayer for reversal of the resolution. Again, no copy of the pleading was served upon Cuanan.

cralawSubsequently, pursuant to Division Special Order No. 001 series of 2003 dated June 18, 2003, Cuanan was reinstated to his former position as school principal effective April 30, 2003.[20] In Division Special Order No. 285, series of 2003 dated July 8, 2003, Cuanan was directed to return to duty.[21] Based thereon, Cuanan requested payment of salaries and his inclusion in the payroll, which the Division School Superintendent of Nueva Ecija duly endorsed on November 7, 2003.[22]

cralawHowever, on October 22, 2004, the CSC issued Resolution No. 041147[23] setting aside CSC Resolution No. 030069 dated January 20, 2003. It found Cuanan guilty of Sexual Harassment, Grave Misconduct and Conduct Grossly Prejudicial to the Best Interest of the Service and meted out the

penalty of dismissal from the service with forfeiture of retirement benefits, cancellation of his service eligibility, and perpetual disqualification from holding public office. Cuanan received a copy of the Resolution on November 9, 2004.[24]

cralawThirteen days later, or on November 22, 2004, Cuanan filed a petition for certiorari[25] with the CA seeking to annul Resolution No. 041147, alleging that the CSC should not have entertained the petition for review/reconsideration since the DepEd was not the complainant or the party adversely affected by the resolution; that the petition for review/reconsideration was filed out of time; and that Cuanan was not furnished copies of the pleadings filed by the DepEd in violation of procedural due process.

cralawThe DepEd sought the dismissal of the petition on the ground of improper remedy, the mode of review from a decision of the CSC being a petition for review under Rule 43 of the Rules of Court.

cralawOn May 16, 2005, the CA rendered a Decision[26] granting the petition for certiorari and setting aside CSC Resolution No. 041147 dated October 12, 2004. The CA held that while a motion for reconsideration and a petition for review under Rule 43 were available remedies, Cuanan's recourse to a petition for certiorari was warranted, since the act complained of was patently illegal; that the CSC gravely abused its discretion in granting the petition for review/reconsideration filed by the DepEd without regard for Cuanan's fundamental right to due process, since he was not duly notified of the petition for review/reconsideration, nor was he required by the CSC to file a comment thereon, much less, given a copy of the said petition; that the DepEd failed to establish that the resolution was not yet final and executory when it filed its petition for review/reconsideration.

cralawDepEd filed a Motion for Reconsideration,[27] but the CA denied the same in its Resolution[28] dated July 18, 2005.

cralawHence, the present petition on the following grounds:

I WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW IN TAKING COGNIZANCE OF THE PETITION IN CA-G.R. SP NO. 87499, THE SAME NOT BEING THE PROPER REMEDY IN ASSAILING CSC RESOLUTION NO. 041147 DATED OCTOBER 22, 2004.

II WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW IN ADJUDGING CSC AS HAVING COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING RESOLUTION NO. 041147 DATED OCTOBER 22, 2004.[29]

cralawDepEd contends that the CA should have dismissed outright the petition for certiorari because CSC decisions are appealable to the CA by petition for review under Rule 43; that the filing of a motion for reconsideration was a precondition to the filing of a petition for certiorari under Rule 65; that the DepEd, even if not the complainant, may question the resolution of the CSC; that Cuanan failed to prove that the CSC's petition for review/reconsideration was not seasonably filed; that even if Cuanan was not served a copy of the pleadings filed by the DepEd, the CSC was not bound by procedural rules.

cralawCuanan, on the other hand, contends that the DepEd cannot file a motion for reconsideration from the CSC Resolution exonerating him, since it is not the complainant in the administrative case and therefore not a party adversely affected by the decision therein; that even if DepEd may seek reconsideration of the CSC Resolution, the petition for review/reconsideration was filed out of time; and that Cuanans right to due process was violated when he was not given a copy of the pleadings filed by the DepEd or given the opportunity to comment thereon.

cralawThe Court finds it necessary, before delving on the grounds relied upon by the DepEd in support of the petition, to first resolve the question of whether the DepEd can seek reconsideration of the CSC Resolution exonerating Cuanan.

cralawIn a long line of cases, beginning with Civil Service Commission v. Dacoycoy,[30] and reiterated in Philippine National Bank v. Garcia, Jr.,[31] the Court has maintained that the disciplining authority qualifies as a party adversely affected by the judgment, who can file an appeal of a judgment of exoneration in an administrative case. CSC Resolution No. 021600[32] allows the disciplining authority to appeal from a decision exonerating an erring employee, thus:

cralawSection 2. Coverage and Definition of Terms. x x x (l) PARTY ADVERSELY AFFECTED refers to the respondent against whom a decision in a disciplinary case has been rendered or to the disciplining authority in an appeal from a decision exonerating the said employee. (Emphasis supplied)

Hence, Cuanan's exoneration under CSC Resolution No. 030069 may be subject to a motion for reconsideration by the DepEd which, as the appointing and disciplining authority, is a real party in interest.cralaw

cralawNow, as to the merits of DepEd's arguments, the Court finds none.

cralawThe remedy of an aggrieved party from a resolution issued by the CSC is to file a petition for review thereof under Rule 43[33] of the Rules of Court within fifteen days from notice of the resolution. Recourse to a petition for certiorari under Rule 65 renders the petition dismissible for being the wrong remedy. Nonetheless, there are exceptions to this rule, to wit: (a) when public welfare and the advancement of public policy dictates; (b) when the broader interest of justice so requires; (c) when the writs issued are null and void; or (d) when the questioned order amounts to an oppressive exercise of judicial authority.[34] As will be shown forthwith, exception (c) applies to the present case.

cralawFurthermore, while a motion for reconsideration is a condition precedent to the filing of a petition for certiorari, immediate recourse to the extraordinary remedy of certiorari is warranted where the order is a patent nullity, as where the court a quo has no jurisdiction; where petitioner was deprived of due process and there is extreme urgency for relief; where the proceedings in the lower court are a nullity for lack of due process; where the proceeding was ex parte or one in which the petitioner had no opportunity to object.[35] These exceptions find application to Cuanan's petition for certiorari in the CA.

cralawAt any rate, Cuanan's petition for certiorari before the CA could be treated as a petition for review, the petition having been filed on November 22, 2004, or thirteen (13) days from receipt on November 9, 2004 of CSC Resolution No. 041147, clearly within the 15-day reglementary period for the filing of a petition for review.[36] Such move would be in accordance with the liberal spirit pervading the Rules of Court and in the interest of substantial justice.[37] cralawFurthermore, CSC Resolution No. 030069 has long become final and executory. It must be noted that the records show that copies of CSC Resolution No. 030069 were duly sent to the parties, including DepEd, on January 23, 2003.[38] Cuanan received a copy thereof on January 31, 2003,[39] while the DepEd requested a copy sometime in March 2003, or about two months later. Under the Rules of Evidence, it is presumed that official duty has been regularly performed, unless contradicted.[40] This presumption includes that of regularity of service of judgments, final orders or resolutions.

cralawConsequently, the burden of proving the irregularity in official conduct -- that is, non-receipt of the duly sent copy of CSC Resolution No. 030069 -- is on the part of the DepEd, which in the present case clearly failed to discharge the same.[41] Thus, the presumption stands that CSC Resolution No. 030069 dated January 20, 2003 had already become final and executory when the DepEd filed its Petition for Review/Reconsideration on April 11, 2003, more than two months later.

cralawIt is elementary that once judgment has become final and executory, it becomes immutable and can no longer be amended or modified. In Gallardo-Corro v. Gallardo,[42] this Court held:

Nothing is more settled in law than that once a judgment attains finality it thereby becomes immutable and unalterable. It may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land. Just as the losing party has the right to file an appeal within the prescribed period, the winning party also has the correlative right to enjoy the finality of the resolution of his case. The doctrine of finality of judgment is grounded on fundamental considerations of public policy and sound practice, and that, at the risk of occasional errors, the judgments or orders of courts must become final at some definite time fixed by law; otherwise, there would be no end to litigations, thus setting to naught the main role of courts of justice which is to assist in the enforcement of the rule of law and the maintenance of peace and order by settling justiciable controversies with finality.[43]

cralawMoreover, while it is true that administrative tribunals exercising quasi-judicial functions are free from the rigidity of certain procedural requirements, they are bound by law and practice to observe the fundamental and essential requirements of due process in justiciable cases presented before them.[44] The relative freedom of the CSC from the rigidities of procedure cannot be invoked to evade what was clearly emphasized in the landmark case of Ang Tibay v. Court of Industrial Relations:[45] that all administrative bodies cannot ignore or disregard the fundamental and essential requirements of due process.

cralawFurthermore, Section 43.A.[46] of the Uniform Rules in Administrative Cases in the Civil Service provides:

cralawSection 43.A. Filing of Supplemental Pleadings. - All pleadings filed by the parties with the Commission, shall be copy furnished the other party with proof of service filed with the Commission.

cralawAny supplemental pleading to supply deficiencies in aid of an original pleading but which should not entirely substitute the latter can be filed only upon a favorable action by the Commission on the motion of a party to the case. The said motion should be submitted within five (5) days from receipt of a copy of the original pleading and it is discretionary upon the Commission to allow the same or not or even to consider the averments therein.(Emphasis supplied) cralaw cralawCuanan undoubtedly was denied procedural due process. He had no opportunity to participate in the proceedings for the petition for review/ reconsideration filed by the DepEd, since no copy of the pleadings filed by the DepEd were served upon him or his counsel; nor was he even required by the CSC to file his comments thereon. Considering that pleadings filed by the DepEd were not served upon Cuanan, they may be treated as mere scraps of paper which should not have merited the attention or consideration of the CSC.

cralawWHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 87499 are AFFIRMED.SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. L-26803 October 14, 1975 AMERICAN TOBACCO COMPANY, CARNATION COMPANY, CURTISS CANDY COMPANY, CUDAHY PACKING CO., CLUETT, PEABODY & CO., INC., CANNONMILLS COMPANY, FORMICA CORPORATION, GENERALMOTORS CORPORATION, INTERNATIONAL LATEX CORPORATION, KAYSER-ROTH CORPORATION, M and R DIETETIC LABORATORIES, INC., OLIN MATHIESON, PARFUM CIRO, INC., PROCTER and GAMBLE COMPANY, PROCTER and GAMBLE PHILIPPINE MANUFACTURING CORPORATION, PARFUMS PORVIL DENTRIFICES DU DOCTEUR PIERRE REUNIS SOCIETE ANONYME, R.J. REYNOLDS TOBACCO COMPANY, SWIFT AND COMPANY, STERLING PRODUCTS INTERNATIONAL, THE CLOROX COMPANY, WARNER LAMBERT PHARMACEUTICALS COMPANY and ZENITH RADIO CORPORATION,

Petitioners, vs. THE DIRECTOR OF PATENTS, ATTYS. AMANDO L. MARQUEZ, TEOFILO P. VELASCO, RUSTICO A. CASIA and HECTOR D. BUENALUZ, Respondents. ANTONIO, J.: In this petition for mandamus with preliminary injunction, petitioners challenge the validity of Rule 168 of the "Revised Rules of Practice before the Philippine Patent Office in Trademark Cases" as amended, authorizing the Director of Patents to designate any ranking official of said office to hear "inter partes" proceedings. Said Rule likewise provides that "all judgments determining the merits of the case shall be personally and directly prepared by the Director and signed by him." These proceedings refer to the hearing of opposition to the registration of a mark or trade name, interference proceeding instituted for the purpose of determining the question of priority of adoption and use of a trade-mark, trade name or service-mark, and cancellation of registration of a trade-mark or trade name pending at the Patent Office.chanroblesvirtualawlibrary chanrobles virtual law library Petitioners are parties, respectively, in the following opposition, interference and cancellation proceedings in said Office: Inter Partes Cases Nos. 157, 392, 896, 282, 247, 354, 246,332, 398, 325, 374, 175, 297, 256, 267, 111, 400, 324, 114, 159, 346, and 404.chanroblesvirtualawlibrary chanrobles virtual law library Under the Trade-mark Law (Republic Act No. 166 ), the Director of Patents is vested with jurisdiction over the above-mentioned cases. Likewise, the Rules of Practice in Trade-mark Cases contains a similar provision, thus: 168. Original jurisdiction over inter partes proceeding. - the Director of Patents shall have original jurisdiction over inter partes proceedings. In the event that the Patent Office should be provided with an Examiner of Interferences, this Examiner shall have the original jurisdiction over these cases, instead of the Director. In the case that the Examiner of Interferences takes over the original jurisdiction over inter partes proceedings, his final decision subject to appeal to the Director of Patents within three months of the receipt of notice of decisions. Such appeals shall be governed by sections 2, 3, 4, 6, 7, 8, 10, 11, 12, 13, 14, 15 and 22 of Rule 41 of the Rules of Court insofar as said sections are applicable and appropriate, and the appeal fee shall be P25.00. The Rules of Practice in Trade-mark Cases were drafted and promulgated by the Director of Patents and approved by the then Secretary of Agriculture and Commerce.. 1 Subsequently, the Director of Patents, with the approval of the Secretary of Agriculture and Commerce, amended the afore-quoted Rule 168 to read as follows: 168. Original Jurisdiction over inter partes proceedings. - The Director of Patents shall have original jurisdiction over inter partes proceedings, [In the event that the Patent Office is provided with an Examiner of Interferences, this Examiner shall then have the original jurisdiction over these cases, instead of the Director. In the case that the Examiner of Interferences takes over the original jurisdiction over inter partes proceedings, his final decisions shall be subject to appeal to the Director of Patents within three months of the receipt of notice decision. Such appeals shall be governed by

Sections 2, 3, 4, 6, 7, 8,10, 11, 12, 13, 14, 15, and 22 of Rule 41 of the Rules of Court insofar as said sections are applicable and appropriate, and the appeal fee shall be [P25.00.] Such inter partes proceedings in the Philippine Patent Office under this Title shall be heard before the Director of Patents, any hearing officer, or any ranking official designated by the Director, but all judgments determining the merits of the case shall be personally and directly prepared by the Director and signed by him. (Emphasis supplied.) In accordance with the amended Rule, the Director of Patents delegated the hearing of petitioners' cases to hearing officers, specifically, Attys. Amando Marquez, Teofilo Velasco, Rustico Casia and Hector Buenaluz, the other respondents herein.chanroblesvirtualawlibrary chanrobles virtual law library Petitioners filed their objections to the authority of the hearing officers to hear their cases, alleging that the amendment of the Rule is illegal and void because under the law the Director must personally hear and decide inter partes cases. Said objections were overruled by the Director of Patents, hence, the present petition for mandamus, to compel The Director of Patents to personally hear the cases of petitioners, in lieu of the hearing officers.chanroblesvirtualawlibrary chanrobles virtual law library It would take an extremely narrow reading of the powers of the Director of Patents under the general law 2 and Republic Acts Nos. 165 3 and 166 3* to sustain the contention of petitioners. Under section 3 of RA 165, the Director of Patents is "empowered to obtain the assistance of technical, scientific or other qualified officers or employees of other departments, bureaus, offices, agencies and instrumentalities of the Government, including corporations owned, controlled or operated by the Government, when deemed necessary in the consideration of any matter submitted to the Office relative to the enforcement of the provisions" of said Act. Section 78 of the same Act also empowers "the Director, subject to the approval of the Department Head," to "promulgate the necessary rules and regulations, not inconsistent with law, for the conduct of all business in the Patent Office." The aforecited statutory authority undoubtedly also applies to the administration and enforcement of the Trade-mark Law (Republic Act No. 166).chanroblesvirtualawlibrary chanrobles virtual law library It has been held that power-conferred upon an administrative agency to which the administration of a statute is entrusted to issue such regulations and orders as may be deemed necessary or proper in order to carry out its purposes and provisions maybe an adequate source of authority to delegate a particular function, unless by express provisions of the Act or by implication it has been withheld. 4 There is no provision either in Republic Act No. 165 or 166 negativing the existence of such authority, so far as the designation of hearing examiners is concerned. Nor can the absence of such authority be fairly inferred from contemporaneous and consistent Executive interpretation of the Act.chanroblesvirtualawlibrary chanrobles virtual law library The nature of the power and authority entrusted to The Director of Patents suggests that the aforecited laws (Republic Act No. 166, in relation to Republic Act No. 165) should be construed so as to give the aforesaid official the administrative flexibility necessary for the prompt and expeditious discharge of his duties in the administration of said laws. As such officer, he is required, among others, to determine the question of priority in patent interference proceedings, 5 decide applications for reinstatement of a lapsed patent, 6 cancellations of patents under Republic Act No. 165, 7 inter partes proceedings such as

oppositions, 8 claims of interference, 9 cancellation cases under the Trade-mark Law 10 and other matters in connection with the enforcement of the aforesaid laws. It could hardly be expected, in view of the magnitude of his responsibility, to require him to hear personally each and every case pending in his Office. This would leave him little time to attend to his other duties. 11 For him to do so and at the same time attend personally to the discharge of every other duty or responsibility imposed upon his Office by law would not further the development of orderly and responsible administration. The reduction of existing delays in regulating agencies requires the elimination of needless work at top levels. Unnecessary and unimportant details often occupy far too much of the time and energy of the heads of these agencies and prevent full and expeditious consideration of the more important issues. the remedy is a far wider range of delegations to subordinate officers. This sub-delegation of power has been justified by "sound principles of organization" which demand that "those at the top be able to concentrate their attention upon the larger and more important questions of policy and practice, and their time be freed, so far as possible, from the consideration of the smaller and far less important matters of detail." 12 chanrobles virtual law library Thus, it is well-settled that while the power to decide resides solely in the administrative agency vested by law, this does not preclude a delegation of the power to hold a hearing on the basis of which the decision of the administrative agency will be made. 13 chanrobles virtual law library The rule that requires an administrative officer to exercise his own judgment and discretion does not preclude him from utilizing, as a matter of practical administrative procedure, the aid of subordinates to investigate and report to him the facts, on the basis of which the officer makes his decisions. 14 It is sufficient that the judgment and discretion finally exercised are those of the officer authorized by law. Neither does due process of law nor the requirements of fair hearing require that the actual taking of testimony be before the same officer who will make the decision in the case. As long as a party is not deprived of his right to present his own case and submit evidence in support thereof, and the decision is supported by the evidence in the record, there is no question that the requirements of due process and fair trial are fully met. 15 In short, there is no abnegation of responsibility on the part of the officer concerned as the actual decision remains with and is made by said officer. 16 It is, however, required that to "give the substance of a hearing, which is for the purpose of making determinations upon evidence the officer who makes the determinations must consider and appraise the evidence which justifies them." 17 chanrobles virtual law library In the case at bar, while the hearing officer may make preliminary rulings on the myriad of questions raised at the hearings of these cases, the ultimate decision on the merits of all the issues and questions involved is left to the Director of Patents. Apart from the circumstance that the point involved is procedural and not jurisdictional, petitioners have not shown in what manner they have been prejudiced by the proceedings.chanroblesvirtualawlibrary chanrobles virtual law library Moreover, as the Solicitor General Antonio P. Barredo, now a Member of this Court has correctly pointed out, the repeated appropriations by Congress for hearing officers of the Philippine Patent Office form 1963 to 1968 18 not only confirms the departmental construction of the statute, but also

constitutes a ratification of the act of the Director of Patents and the Department Head as agents of Congress in the administration of the law. 19 WHEREFORE, the instant petition is hereby dismissed, with costs against petitioners. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION [G.R. No. 114129. October 24, 1996] MANILA ELECTRIC COMPANY, Petitioner, vs. NATIONAL LABOR RELATIONS COMMISSIONS and JEREMIAS G. CORTEZ, respondents. DECISION HERMOSISIMA, JR., J.:chanroblesvirtualawlibrary This is a petition for certiorari with a prayer for temporary restraining order to set aside the Resolution of the First Division of the National Labor Relations Commission (NLRC) dated September 30, 1993 (which reversed the Decision dated August 13, 1991 of the Labor Arbiter Cresencio R. Iniego), and its Order dated December 29, 1993 (which denied petitioners motion for reconsideration). chanroblesvirtualawlibrary Private respondent Jeremias C. Cortez, Jr. was employed on probationary status by petitioner Manila Electric Company (Meralco) on September 15, 1975 as a lineman driver. Six months later, he was regularized as a 3rd class lineman-driver assigned at petitioners North Distribution Division. In 1977, and until the time of his dismissal, he worked as 1st class lineman-driver whose duties and responsibilities among others, includes the maintenance of Meralcos distribution facilities (electric lines) by responding to customers complaints of power failure, interruptions, line trippings and other line troubles.chanroblesvirtualawlibrary Characteristics, however, of private respondents service with petitioner is his perennial suspension from work, viz: Date of Memorandum a. May 25, 1977 Penalty Meted/Description - Suspension of five (5) working days without pay for violation of Company Code on Employee Discipline, i.e., drinking of alcoholic beverages during working time xxx. - Suspension of three (3) working days without pay for failure or refusal to

b. March 28, 1984

report to J.F. cotton Hospital [where petitioner maintains a medical clinic] as instructed by a company physician, while on sick leave. C. June 13, 1984 - Suspension of ten (10) working days without pay for unauthorized extension of sick leave. - Suspension of three (3) working days without pay for failure or refusal to report to J.F. Cotton Hospital [where petitioner maintains a medical clinic] as instructed by a company physician, while on sick leave.chanroblesvirtualawlibrary chanroblesvirtualawlibrary [Private respondents failed to report for work from Sept. 18, 1986 to Nov. 10, 1986]. e. December 16, 1988 - Preventive suspension for failure to submit the required Medical Certificate within 48 hours from the first date of the sick leave.chanroblesvirtualawlibrary chanroblesvirtualawlibrary [Private respondent failed to report for work from Nov. 28, 1988 to the time such Memorandum was issued on December 16, 1988]. f. February 22, 1989 - After formal administrative investigation, suspension of five (5) working days without pay for unauthorized absences on November 28, 1988 to December 2, 1988. Absences from December 2, 1988. Absences from December 9-19, 1988 were charged to private respondents

d. June 5, 1987

vacation leave credits for the calendar year 1989. g. May 30, 1989 - Suspension of ten (10) working days without pay for unauthorized absences from May 17-19 1989, with warning that penalty of dismissal will be imposed upon commission of similar offense in the future.1

Due to his numerous infractions, private respondent was administratively investigated for violation of Meralcos Code on Employee Discipline, particularly his repeated and unabated absence from work without prior notice his superior specifically from August 2 to September 19, 1989.chanroblesvirtualawlibrary After such administrative investigation was conducted by petitioner, it concluded that private respondent was found to have grossly neglected his duties by not attending to his work as lineman from Aug. 2, 1989 to September 19, 1989 without notice to his superiors.chanroblesvirtualawlibrary In a letter dated January 19, 1990, private respondent was notified of the investigation result and consequent termination of his services effective January 19, 1990, viz:chanroblesvirtualawlibrary "Mr. Jeremias C. Cortez, Jr.chanroblesvirtualawlibrary 16 E Jacinto Streetchanroblesvirtualawlibrary Malabon, Metro Manilachanroblesvirtualawlibrary Dear Mr. Cortez:chanroblesvirtualawlibrary Official findings of formal administrative investigation duly conducted by the Companys Legal Services Department established the following:chanroblesvirtualawlibrary 1. You incurred unauthorized and unexcused absences from work starting August 2, 1989 up to September 9, 1989. On September 20, 1989, you were allowed to return to work but without prejudice to the outcome of an administrative investigation. By your unauthorized and unexcused absences from work, you have grossly violated Section 4, par. (e) of the Company Code on Employee Discipline which prescribes (u)nauthorized and unexcused absences from work which exceed five (5) consecutive working days penalized therein with dismissal of the erring employees from the service and employ of the Company. x x x x x x x x xchanroblesvirtualawlibrary The foregoing instances plus your series of violations of the sick leave policy clearly show your gross and habitual neglect of duties and responsibilities in the Company, a condition which is patently inimical to the interest of the Company as a public utility vested vital public interest.

x x x x x x x x xchanroblesvirtualawlibrary Based on the foregoing, and considering your series of violations of the Company Code on Employees Discipline, Management is constrained to dismiss you for causes from the service and employ of the Company, as you are hereby so dismissed effective January 19, 1990, with forfeiture of all rights and privileges.chanroblesvirtualawlibrary Truly yours,chanroblesvirtualawlibrary For E.L. Sapang, Jr.chanroblesvirtualawlibrary Assistant Vice Presidentchanroblesvirtualawlibrary Personnel Managementchanroblesvirtualawlibrary Department"2chanroblesvirtualawlibrary On March 7, 1990, private respondent filed a complaint for illegal dismissal against petitioner. After both parties submitted their position papers and the documentary evidence attached thereto, the case was submitted for resolution.chanroblesvirtualawlibrary On August 13, 1991, the Labor Arbiter rendered a Decision dismissing the case for lack of merit. The Labor Arbiter ratiocinated thus:chanroblesvirtualawlibrary "When complainant therefore, in patent violation of respondents clear and express rules intended to insure discipline and integrity among its employees, deliberately, habitually, and without prior authorization, and despite warning, did not report for work from August 1, 1989 to September 19, 1989, complainant committed serious misconduct and gross neglect of duty. In doing so, complainant can [be] validly dismissed. For as held by the Supreme Court, dismissal for violation of the Companys Rules and Regulations is a dismissal for cause. (Peter Paul v. C.I.R., G.R. No. L- 10130, September 1957; NMI v. NLU, 102 Phil 958). x x x x x x x x xchanroblesvirtualawlibrary Considering the above, we find the complainants dismissal from the service as lawful exercise by respondent of its prerogative to discipline errant employee.chanroblesvirtualawlibrary WHEREFORE, the instant case should be as it is hereby dismissed for lack of merit."3chanroblesvirtualawlibrary Aggrieved with the decision of the Labor Arbiter, private respondent elevated his case on appeal to public respondent.chanroblesvirtualawlibrary On September 30, 1993, the NLRC set aside the decision of the Labor Arbiter and ordered petitioner to reinstate respondent with backwages.4chanroblesvirtualawlibrary Petitioner then filed a Motion for Reconsideration which was denied.chanroblesvirtualawlibrary

Hence, this petition.chanroblesvirtualawlibrary The crux of the present controversy is whether or not private respondents dismissal from the service was illegal.chanroblesvirtualawlibrary A perusal of the records shows that there is a divergence of views between the Labor Arbiter and the NLRC regarding the validity of the dismissal of respondent by petitioner. Although, it is a legal tenet that factual findings of administrative bodies are entitled to great weight and respect, we are constrained to take a second look at the facts before us because of the diversity in the opinions of the Labor Arbiter and the NLRC.chanroblesvirtualawlibrary Petitioner alleges that there was grave abuse of discretion on the part of the NLRC when it reversed the decision of the Labor Arbiter on the following grounds: (a) that petitioner admitted in its Position Paper (Annex "12") that private respondent "went into hiding as he was engaged in a trouble with a neighbor" and (b) that in the said decision, the Labor Arbiter relied not so much on complainants absences from August 1 to September 19, 1989 which was the subject of the investigation, but on complainants previous infractions.chanroblesvirtualawlibrary Article 283 of the Labor Code enumerates the just causes for termination. Among such causes are the following:chanroblesvirtualawlibrary "a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employers or representatives in connection with his work.chanroblesvirtualawlibrary b) Gross and habitual neglect by the employee of his duties.chanroblesvirtualawlibrary xxx xxx xxx."chanroblesvirtualawlibrary This cause includes gross inefficiency, negligence and carelessness. Such just causes is derived from the right of the employer to select and engage his employees. For indeed, regulation of manpower by the company clearly falls within the ambit of management prerogative. This court had defined a valid exercise of management prerogative as one which covers: hiring work assignment, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, lay-off of workers, and the discipline, dismissal and recall of workers. Except as provided for, or limited by, special laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment.5chanroblesvirtualawlibrary Moreover, this Court has upheld a companys management prerogatives so long as they are exercised in good faith for the advancement of the employers interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements.6chanroblesvirtualawlibrary In the case at bar, the service record of private respondent with petitioner is perpetually characterized by unexplained absences and unauthorized sick leave extensions. The nature of his job i.e. as a

lineman-driver requires his physical presence to minister to incessant complaints often faulted with electricity. As aptly stated by the Solicitor General:chanroblesvirtualawlibrary "Habitual absenteeism of an errant employee is not concordant with the public service that petitioner has to assiduously provide. To have delayed power failure in a certain district simply because a MERALCO employee assigned to such area was absent and cannot immediately be replaced is a breach of public service of the highest order. A deep sense of duty would, therefore, command that private respondent should, at the very least, limit his absence for justifiable reasons.7chanroblesvirtualawlibrary The penchant of private respondent to continually incur unauthorized absences and/or a violation of petitioners sick leave policy finally rendered his dismissal as imminently proper. Private respondent cannot expect compassion from this Court by totally disregarding his numerous previous infractions and take into considerations only the period covering August 2, 1989 to September 19, 1989. As ruled by this Court in the cases of Mendoza v. National Labor Relation Commissions,8 and National Service Corporation v. Leogardo, Jr.,9 it is the totality, not the compartmentalization, of such company infractions that private respondents had consistently committed which justified his penalty of dismissal.chanroblesvirtualawlibrary As correctly observed by the Labor Arbiter:chanroblesvirtualawlibrary "In the case at bar, it was established that complainant violated respondents Code on Employee Discipline, not only once, but ten (10) times. On the first occasion, complainant was simply warned. On the second time, he was suspended for 5 days. With the hope of reforming the complainant, respondent generously imposed penalties of suspension for his repeated unauthorized absences and violations of sick leave policy which constitute violations of the Code. On the ninth time, complainant was already warned that the penalty of dismissal will be imposed for similar or equally serious violation (Annex "10").chanroblesvirtualawlibrary In total disregard of respondents warning, complainant, for the tenth time did not report for work without prior authority from respondent; hence, unauthorized. Worse, in total disregard of his duties as lineman, he did not report for work from August 1, 1989 to September 19, 1989; thus, seriously affected (sic) respondents operations as a public utility. This constitute[s] a violation of respondents Code and gross neglect of duty and serious misconduct under Article 283 of the labor Code."10chanroblesvirtualawlibrary Habitual absenteeism should not and cannot be tolerated by petitioner herein which is a public utility company engaged in the business of distributing and selling electric energy within its franchise areas and that the maintenance of Meralcos distribution facilities (electric lines) by responding to customers complaints of power failure, interruptions, line trippings and other line troubles is of paramount importance to the consuming public.chanroblesvirtualawlibrary Hence, an employees habitual absenteeism without leave, which violated company rules and regulation is sufficient to justify termination from the service.11chanroblesvirtualawlibrary

In reversing the decision rendered by the Labor Arbiter, the NLRC made the following findings, viz: xxx xxx xxxchanroblesvirtualawlibrary "We perused the records of exact what transpired in the fateful August 1 to September 19, 1989 where complainant failed to report for work, and found out that no less than Annex "12" (to respondents position paper which is labeled "Administrative Investigation" dated 14 October 1989) shows that during that period, the complainant went into hiding as he was engaged in a trouble with a neighbor.chanroblesvirtualawlibrary With such admission by respondent, that is, therefore, no way with which the complainant may be validly penalized for his absence during the period August 1 to September 19, 1989."12chanroblesvirtualawlibrary However, a meticulous perusal of Annex "12" readily shows that the statement "he went into hiding as he was engaged in trouble with a neighbor" was merely a defense adduced by respondent employee and is tantamount to an alibi. The said defense only proved to be self-serving as the same had not been fully substantiated by private respondent by means of a document or an affidavit executed to attest to the alleged incidents.chanroblesvirtualawlibrary Furthermore, contrary to the findings of public respondent, petitioner never admitted private respondents "went into hiding as he was engaged in a trouble with a neighbor." As found out by petitioner in the course of its investigation:chanroblesvirtualawlibrary "Out of curiosity, we verified from the Barangay where [private respondent resides to find out the nature of [the] cases he was allegedly got (sic) involved. Records of Barangay Captain of Bgy. Concepcion, Malabon, Metro Manila showed that Cortezs wife has a pending complaint against a neighbor for physical injury the complaint was filed on July 6, 1989." xxx xxx xxxchanroblesvirtualawlibrary We are also not convinced that he went into hiding as we met him at his known address at that time he said he was still beset with problems."13chanroblesvirtualawlibrary This report only bolstered the falsehood of private respondents alibi hence, petitioner had no other recourse but to mete the penalty of dismissal as an exercise of its management prerogative.chanroblesvirtualawlibrary Private respondent herein cannot just rely on the social justice provisions of the Constitution and appeal for compassion because he is not entitled to it due to his serious and repeated company infractions which eventually led to his dismissal.chanroblesvirtualawlibrary Private respondents prolonged absence from August 2, 1989 to September 19, 1989 was the crucial period in this particular case. Subsequent investigation conducted by petitioner, however, showed that private respondent was given the full opportunity of defending himself, otherwise, petitioner could not have possibly known of private respondents side of the story, viz:chanroblesvirtualawlibrary

Statement of Respondentchanroblesvirtualawlibrary "In his sworn statement, Cortez maintained his allegations contained in his letters to his office explaining that his absence were inevitable due to the family problems. He insisted that his wife and his children suffered from LBM probably due to the floods at their place brought about by a typhoon. Since they were not treated by a physician, he could not present a medical certificate to the effect.chanroblesvirtualawlibrary Cortez also intimated that he was engaged in trouble and averred that, for security reasons, he went into hiding in a town in Cavite Province. He claimed that in several occasions, he had informed his office about his problems and requested the same that his absences be considered excused."14chanroblesvirtualawlibrary Notice and hearing in termination cases does not connote full adversarial proceedings as elucidated in numerous cases decide by this court.15 The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain ones side.16 As held in the case of Manggagawa ng Komunikasyon sa Pilipinas v. NLRC:17chanroblesvirtualawlibrary "xxx Actual adversarial proceedings becomes necessary only for clarification or when there is a need to propound searching questions to unclear witnesses. This is a procedural right which the employee must, however, ask for it is not an inherent right, and summary proceedings may be conducted. This is to correct the common but mistaken perception that procedural due process entails lengthy oral arguments. Hearings in administrative proceedings and before quasi-judicial agencies are neither oratorical contest nor debating skirmishes where cross examination skills are displayed. Non-verbal devices such as written explanations, affidavits, positions papers or other pleadings can establish just as clearly and concisely aggrieved parties predicament or defense. What is essential, is ample opportunity to be heard, meaning, every kind of assistance that management must accord the employee to prepare adequately for his defense."chanroblesvirtualawlibrary In this case, private respondent was given the opportunity of a hearing as he was able to present his defense to the charge against him. Unfortunately, petitioner found such defense inexcusable. In other words, the fact that private respondent was given the chance to air his side of the story already suffices.chanroblesvirtualawlibrary WHEREFORE, the petition is GRANTED. The decision rendered by the National labor Relations Commissions is annulled and the decision rendered by the Labor Arbiter is hereby AFFIRMED in toto.chanroblesvirtualawlibrary SO ORDERED. Republic of the Philippines SUPREME COURT Manila

THIRD DIVISION

DE LA SALLE UNIVERSITY, INC.,G.R. No. 127980 EMMANUEL SALES, RONALD HOLMES, JUDE DELA TORRE, AMPARO RIO,cralawCARMELITAPresent: QUEBENGCO, AGNES YUHICO and JAMES YAP,YNARES-SANTIAGO, J., Petitioners,Chairperson, cralawQUISUMBING,*chanroblesvirtuallawlibrary CHICO-NAZARIO, -versus-VELASCO, JR.,** and REYES, JJ.

THE COURT OF APPEALS, HON. WILFREDO D. REYES, in his capacity as Presiding Judge of Branch 36, Regional Trial Court of Manila, THE COMMISSION ON HIGHER EDUCATION, THE DEPARTMENT OF EDUCATION CULTURE AND SPORTS, ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, RICHARD REVERENTE and ROBERTOPromulgated: VALDES, JR.,

Respondents.cralawDecember 19, 2007 x--------------------------------------------------x

DECISION

REYES, R.T., J.:

cralawNAGTATAGIS sa kasong ito ang karapatang mag-aral ng apat na estudyante na nasangkot sa away ng dalawang fraternity at ang karapatang akademiko ng isang pamantasan. cralawPRIVATE respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity who were expelled by the De La Salle University (DLSU) and College of Saint Benilde (CSB) Joint Discipline Board because of their involvement in an offensive action causing injuries to petitioner James Yap and three other student members of Domino Lux Fraternity.This is the backdrop of the controversy before Us pitting private respondents right to education vis-a-vis the Universitys right to academic freedom. cralawASSAILED in this Petition for Certiorari, Prohibition and Mandamus under Rule 65 of the Rules of Court are the following: (1) Resolution of the Court of Appeals (CA) dated July 30, 1996 dismissing DLSUs petition for certiorari against respondent Judge and private respondents Aguilar, Bungubung, Reverente, and Valdes, Jr.; (2) Resolution of the CA dated October 15, 1996 denying the motion for reconsideration; (3) Order dated January 7, 1997 of the Regional Trial Court (RTC), Branch 36 Manila granting private respondent Aguilars motion to reiterate writ of preliminary injunction;and (4) Resolution No. 181-96 dated May 14, 1996 of the Commission on Higher Education (CHED) exonerating private respondent Aguilar and lowering the penalties for the other private respondents from expulsion to exclusion.chanroblesvirtuallawlibrary

Factual Antecedents

Gleaned from the May 3, 1995 Decision of the DLSU-CSB Joint Discipline Board, two violent incidents on March 29, 1995 involving private respondents occurred:

x x xFrom the testimonies of the complaining witnesses, it appears that one week prior to March 29, 1995, Mr. James Yap was eating his dinner alone in Manangs Restaurant near La Salle, when he overheard two men bad-mouthing and apparently angry at Domino Lux.He ignored the comments of the two. When he arrived at his boarding house, he mentioned the remarks to his two other brods while watching television. These two brods had earlier finished eating their dinner at Manangs. Then, the three, together with four other persons went back to Manangs and confronted the two who were still in the restaurant.By admission of respondent Bungubung in his testimony, one of the two was a member of the Tau Gamma Phi Fraternity.There was no rumble or physical violence then.

After this incident, a meeting was conducted between the two heads of the fraternity through the intercession of the Student Council.The Tau Gamma Phi Fraternity was asking for an apology.Kailangan ng apology in the words of respondent Aguilar.But no apology was made.

Then, 5 members of the Tau Gamma Phi Fraternity went to the tambayan of the Domino Lux Fraternity in the campus.Among them were respondents Bungubung, Reverente and Papio.They were looking for a person whose description matched James Yap.According to them, this person supposedly nambastos ng brod.As they could not find Mr. Yap, one of them remarked Paano ba iyan.Pasensiya na lang.

Came March 29, 1995 and the following events.

Ten minutes before his next class at 6:00 p.m., Mr. James Yap went out of the campus using the Engineering Gate to buy candies across Taft Avenue.As he was about to re-cross Taft Avenue, he heard heavy footsteps at his back.Eight to ten guys were running towards him.He panicked.He did not know what to do.Then, respondent Bungubung punched him in the head with something heavy in his hands parang knuckles.Respondents Reverente and Lee were behind Yap, punching him.Respondents Bungubung and Valdes who were in front of him, were also punching him.As he was lying on the street, respondent Aguilar kicked him.People shouted; guards arrived; and the group of attackers left.

cralawMr. Yap could not recognize the other members of the group who attacked him.With respect to respondent Papio, Mr. Yap said hindi ko nakita ang mukha niya, hindi ko nakita sumuntok siya.What Mr. Yap saw was a long haired guy also running with the group.

cralawTwo guards escorted Mr. Yap inside the campus.At this point, Mr. Dennis Pascual was at the Engineering Gate. Mr. Pascual accompanied Yap to the university clinic; reported the incident to the

Discipline Office; and informed his fraternity brods at their tambayan.According to Mr. Pascual, their head of the Domino Lux Fraternity said: Walang gagalaw.Uwian na lang.

cralawMr. Ericson Cano, who was supposed to hitch a ride with Dennis Pascual, saw him under the clock in Miguel Building.However, they did not proceed directly for home.With a certain Michael Perez, they went towards the direction of Dagonoy Street because Mr. Pascual was supposed to pick up a book for his friend from another friend who lives somewhere in the area.

As they were along Dagonoy Street, and before they could pass the Kolehiyo ng Malate Restaurant, Mr. Cano first saw several guys inside the restaurant.He said not to mind them and just keep on walking.However, the group got out of the restaurant, among them respondents Reverente, Lee and Valdes.Mr. Cano told Mr. Lee: Ayaw namin ng gulo.But, respondent Lee hit Mr. Cano without provocation.Respondent Reverente kicked Mr. Pascual and respondent Lee also hit Mr. Pascual.Mr. Cano and Mr. Perez managed to run from the mauling and they were chased by respondent Lee and two others.

Mr. Pascual was left behind. After respondent Reverente first kicked him, Mr. Pascual was gangedupon by the rest.He was able to run, but the group was able to catch up with him.His shirt was torn and he was hit at the back of his head with a lead pipe.Respondent Lee who was chasing Cano and Perez, then returned to Mr. Pascual.

Mr. Pascual identified respondents Reverente and Lee, as among those who hit him.Although Mr. Pascual did not see respondent Valdes hit him, he identified respondent Valdez (sic) as also one of the members of the group.

In fact, Mr. Cano saw respondent Valdes near Mr. Pascual.He was almost near the corner of Leon Guinto and Estrada; while respondent Pascual who managed to run was stopped at the end of Dagonoy along Leon Guinto. Respondent Valdes shouted: Mga putang-ina niyo. Respondent Reverente hit Mr. Pascual for the last time.Apparently being satisfied with their handiwork, the group left.The victims, Cano, Perez and Pascual proceeded to a friends house and waited for almost two hours, or at around 8:00 in the evening before they returned to the campus to have their wounds treated.Apparently, there were three cars roaming the vicinity.

The mauling incidents were a result of a fraternity war.The victims, namely: petitioner James Yap and Dennis Pascual, Ericson Cano, and Michael Perez, are members of the Domino Lux Fraternity, while

the alleged assailants, private respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity, a rival fraternity.

The next day, March 30, 1995, petitioner Yap lodged a complaint with the Discipline Board of DLSU charging private respondents with direct assault.Similar complaints were also filed by Dennis Pascual and Ericson Cano against Alvin Lee and private respondents Valdes and Reverente.Thus, cases entitled De La Salle University and College of St. Benilde v. Alvin Aguilar (AB-BSM/9152105), James Paul Bungubung (AB-PSM/9234403), Robert R. Valdes, Jr. (BS-BS-APM/9235086), Alvin Lee (EDD/9462325), Richard Reverente (AB-MGT/9153837) and Malvin A. Papio (AB-MGT/9251227) were docketed as Discipline Case No. 9495-3-25121.

The Director of the DLSU Discipline Office sent separate notices to private respondents Aguilar, Bungubung and Valdes, Jr. and Reverente informing them of the complaints and requiring them to answer. Private respondents filed their respective answers.chanroblesvirtuallawlibrary

As it appeared that students from DLSU and CSB were involved in the mauling incidents, a joint DLSU-CSB Discipline Boardwasformed to investigate the incidents.Thus, petitioner Board Chairman Emmanuel Sales sent notices of hearing to private respondents on April 12, 1995.Said notices uniformly stated as follows:

Please be informed that a joint and expanded Discipline Board had been constituted to hear and deliberate the charge against you for violation of CHED Order No. 4 arising from the written complaints of James Yap, Dennis C. Pascual, and Ericson Y. Cano.

You are directed to appear at the hearing of the Board scheduled on April 19, 1995 at 9:00 a.m. at the Bro. Connon Hall for you and your witnesses to give testimony and present evidence in your behalf.You may be assisted by a lawyer when you give your testimony or those of your witnesses.

On or before April 18, 1995, you are further directed to provide the Board, through the Discipline Office, with a list of your witnesses as well as the sworn statement of their proposed testimony.

Your failure to appear at the scheduled hearing or your failure to submit the list of witnesses and the sworn statement of their proposed testimony will be considered a waiver on your part to present evidence and as an admission of the principal act complained of. For your strict compliance.

During the proceedings before the Board on April 19 and 28, 1995, private respondents interposed the common defense of alibi, summarized by the DLSU-CSB Joint Discipline Board as follows:

First, in the case of respondent Bungubung, March 29, 1995 was one of the few instances when he was picked-up by a driver, a certain Romeo S. Carillo.Most of the time, respondent Bungubung goes home alone sans driver.But on this particular date, respondent Bungubung said that his dad asked his permission to use the car and thus, his dad instructed this driver Carillo to pick-up his son.Mr. Carillo is not a family driver, but works from 8:00 a.m. to 5:00 p.m. for the Philippine Ports Authority where the elder Bungubung is also employed.

Thus, attempting to corroborate the alibi of respondent Bungubung, Mr. Carillo said that he arrived at La Salle at 4:56 p.m.; picked-up respondent at 5:02 p.m.; took the Roxas Blvd. route towards respondents house in BF Paraaque (on a Wednesday in Baclaran); and arrived at the house at 6:15 p.m.Respondent Bungubung was dropped-off in his house, and taking the same route back, Mr. Carillo arrived at the SouthHarbor at 6:55 p.m. the Philippine Ports Authority is located at the SouthHarbor.chanroblesvirtuallawlibrary

xxxx

Secondly, respondent Valdes said that he was with his friends at McDonalds Taft just before 6:00 p.m. of March 29, 1995.He said that he left McDonald at 5:50 p.m. together to get some medicine at the university clinic for his throat irritation.He said that he was at the clinic at 5:52 p.m. and went back to McDonald, all within a span of 3 or even 4 minutes.

Two witnesses, a certain Sharon Sia and the girlfriend of respondent Valdes, a certain Jorgette Aquino, attempted to corroborate Valdez alibi.chanroblesvirtuallawlibrary

xxxx

Third, respondent Reverente told that (sic)the Board that he was at his home at 5:00 p.m. of March 29, 1995.He said that he was given the responsibility to be the paymaster of the construction workers who were doing some works in the apartment of his parents.Although he had classes in the evening, the workers according to him would wait for him sometimes up to 9:00 p.m. when he arrives from his classes.The workers get paid everyday.

Respondent Reverente submitted an affidavit, unsigned by the workers listed there, supposedly attesting to the fact that he paid the workers at the date and time in question.chanroblesvirtuallawlibrary

xxxx

Fourth, respondent Aguilar solemnly sw[ore] that [he] left DLSU at 5:00 p.m. for CampCrame for a meeting with some of the officers that we were preparing.chanroblesvirtuallawlibrary

On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a Resolution finding private respondents guilty.They were meted the supreme penalty of automatic expulsion, pursuant to CHED Order No. 4.The dispositive part of the resolution reads:

WHEREFORE, considering all the foregoing, the Board finds respondents ALVIN AGUILAR (ABBSM/9152105), JAMES PAUL BUNGUBUNG (AB-PSM/9234403), ALVIN LEE (EDD/94623250) and RICHARD V. REVERENTE (AB-MGT/9153837) guilty of having violated CHED Order No. 4 and thereby orders their automatic expulsion.

In the case of respondent MALVIN A. PAPIO (AB-MGT/9251227), the Board acquits him of the charge.

SO ORDERED.

Private respondents separately moved for reconsideration before the Office of the Senior VicePresident for Internal Operations of DLSU.The motions were all denied in a Letter-Resolution dated June 1, 1995.

On June 5, 1995, private respondent Aguilar filed with the RTC, Manila, against petitioners a petition for certiorari and injunction under Rule 65 of the Rules of Court with prayer for temporary restraining order (TRO) and/or writ of preliminary injunction. It was docketed as Civil Case No. 95-74122 and assigned to respondent Judge of Branch 36. The petition essentially sought to annul the May 3, 1995 Resolution of the DLSU-CSB Joint Discipline Board and the June 1, 1995 Letter-Resolution of the Office of the Senior Vice-President for Internal Affairs.

The following day, June 6, 1995, respondent Judge issued a TRO directing DLSU, its subordinates, agents, representatives and/or other persons acting for and in its behalf to refrain and desist from implementing Resolution dated May 3, 1995 and Letter-Resolution dated June 1, 1995 and to immediately desist from barring the enrollment of Aguilar for the second term of school year (SY) 1995.

Subsequently, private respondent Aguilar filed an ex parte motion to amend his petition to correct an allegation in paragraph 3.21 of his original petition.Respondent Judge amended the TRO to conform to the correction made in the amended petition.chanroblesvirtuallawlibrary

On June 7, 1995, the CHED directed DLSU to furnish it with copies of the case records of Discipline Case No. 9495-3-25121, in view of the authority granted to it under Section 77(c) of the Manual of Regulations for Private Schools (MRPS).

On the other hand, private respondents Bungubung and Reverente, and later, Valdes, filed petitions-inintervention in Civil Case No. 95-74122.Respondent Judge also issued corresponding temporary restraining orders to compel petitioner DLSU to admit said private respondents.

On June 19, 1995, petitioner Sales filed a motion to dismiss in behalf of all petitioners, except James Yap.On June 20, 1995, petitioners filed a supplemental motion to dismiss the petitions-in-intervention.

On September 20, 1995, respondent Judge issued an Order denying petitioners (respondents there) motion to dismiss and its supplement, and granted private respondents (petitioners there) prayer for a writ of preliminary injunction.The pertinent part of the Order reads:

For this purpose, respondent, its agents, representatives or any and all other persons acting for and in its behalf is/are restrained and enjoined from

1. Implementing and enforcing the Resolution dated May 3, 1995 ordering the automatic expulsion of petitioner and the petitioners-in-intervention from the De La Salle University and the letter-resolution dated June 1, 1995, affirming the Resolution dated May 3, 1995; and

2. Barring the enrolment of petitioner and petitioners-in-intervention in the courses offered at respondent De La Salle University and to immediately allow them to enroll and complete their respective courses/degrees until their graduation thereat in accordance with the standards set by the latter.

WHEREFORE, the ancillary remedy prayed for is granted. Respondent, its agents, representatives, or any and all persons acting for and its behalf are hereby restrained and enjoyed from:

1. Implementing and enforcing the Resolution dated May 3, 1995 ordering the automatic expulsion of petitioner and petitioners-in-intervention and the Letter-Resolution dated June 1, 1995; and

2. Barring the enrollment of petitioner and petitioners-in-intervention in the courses offered at respondent (De La Salle University) and to forthwith allow all said petitioner and petitioners-inintervention to enroll and complete their respective courses/degrees until their graduation thereat.

The Writ of Preliminary Injunction shall take effect upon petitioner and petitioners-in-intervention posting an injunctive bond in the amount of P15,000.00 executed in favor of respondent to the effect that petitioner and petitioners-in-intervention will pay to respondent all damages that the latter may

suffer by reason of the injunction if the Court will finally decide that petitioner and petitioners-inintervention are not entitled thereto.

The motion to dismiss and the supplement thereto is denied for lack of merit.Respondents are directed to file their Answer to the Petition not later than fifteen (15) days from receipt thereof.

SO ORDERED.

Despite the said order, private respondent Aguilar was refused enrollment by petitioner DLSU when he attempted to enroll on September 22, 1995 for the second term of SY 1995-1996.Thus, on September 25, 1995, Aguilar filed with respondent Judge an urgent motion to cite petitioners (respondents there) in contempt of court.Aguilar also prayed that petitioners be compelled to enroll him at DLSU in accordance with respondent Judges Order dated September 20, 1995.On September 25, 1995, respondent Judge issued a writ of preliminary injunction, the relevant portion of which reads:

IT IS HEREBY ORDERED by the undersigned of the REGIONAL TRIAL COURT OF MANILA that until further orders, you the said DE LA SALLE University as well as your subordinates, agents, representatives, employees and any other person assisting or acting for or on your behalf, to immediately desist from implementing the Resolution dated May 3, 1995 ordering the automatic expulsion of petitioner and the intervenors in DLSU, and the letter-resolution dated June 1, 1995 affirming the said Resolution of May 3, 1995 and to immediately desist from barring the enrolment of petitioner and intervenors in the courses offered at DLSU and to allow them to enroll and complete their degree courses until their graduation from said school.

On October 16, 1995, petitioner DLSU filed with the CA a petition for certiorari (CA-G.R. SP No. 38719) with prayer for a TRO and/or writ of preliminary injunction to enjoin the enforcement of respondent Judges September 20, 1995 Order and writ of preliminary injunction dated September 25, 1995.

On April 12, 1996, the CA granted petitioners prayer for preliminary injunction.

On May 14, 1996, the CHED issued its questioned Resolution No. 181-96, summarily disapproving the penalty of expulsion for all private respondents.As for Aguilar, he was to be reinstated, while other private respondents were to be excluded.The Resolution states:

RESOLUTION 181-96

RESOLVED THAT THE REQUEST OF THE DE LA SALLE UNIVERSITY (DLSU), TAFT AVENUE, MANILA FOR THE APPROVAL OF THE PENALTY OF EXPULSION IMPOSED ON MR. ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, ROBERT R. VALDES, JR., ALVIN LEE AND RICHARD V. REVERENTE BE, AS IT IS HEREBY IS, DISAPPROVED.

RESOLVED FURTHER, THAT THE COMMISSION DIRECT THE DLSU TO IMMEDIATELY EFFECT THE REINSTATEMENT OF MR. AGUILAR AND THE LOWERING OF THE PENALTY OF MR. JAMES PAUL BUNGUBUNG, MR. ROBER R. VALDEZ, JR., (sic) MR. ALVIN LEE AND MR. RICHARD V. REVERENTE FROM EXPULSION TO EXCLUSION.

Despite the directive of CHED, petitioner DLSU again prevented private respondent Aguilar from enrolling and/or attending his classes, prompting his lawyer to write several demand letters to petitioner DLSU.In view of the refusal of petitioner DLSU to enroll private respondent Aguilar, CHED wrote a letter dated June 26, 1996 addressed to petitioner Quebengco requesting that private respondent Aguilar be allowed to continue attending his classes pending the resolution of its motion for reconsideration of Resolution No. 181-96.However, petitioner Quebengco refused to do so, prompting CHED to promulgate an Order dated September 23, 1996 which states:

Acting on the above-mentioned request of Mr. Aguilar through counsel enjoining De La Salle University (DLSU) to comply with CHED Resolution 181-96 (Re: Expulsion Case of Alvin Aguilar, et al. v. DLSU) directing DLSU to reinstate Mr. Aguilar and finding the urgent request as meritorious, there being no other plain and speedy remedy available, considering the set deadline for enrollment this current TRIMESTER, and in order to prevent further prejudice to his rights as a student of the institution, DLSU, through the proper school authorities, is hereby directed to allow Mr. Alvin Aguilar to provisionally enroll, pending the Commissions Resolution of the instant Motion for Reconsideration filed by DLSU.

SO ORDERED.

Notwithstanding the said directive, petitioner DLSU, through petitioner Quebengco, still refused to allow private respondent Aguilar to enroll.Thus, private respondent Aguilars counsel wrote another demand letter to petitioner DLSU.chanroblesvirtuallawlibrary

Meanwhile, on June 3, 1996, private respondent Aguilar, using CHED Resolution No. 181-96, filed a motion to dismiss in the CA, arguing that CHED Resolution No. 181-96 rendered the CA case moot and academic.

On July 30, 1996, the CA issued its questioned resolution granting the motion to dismiss of private respondent Aguilar, disposing thus:

THE FOREGOING CONSIDERED, dismissal of herein petition is hereby directed.

SO ORDERED.

On October 15, 1996, the CA issued its resolution denying petitioners motion for reconsideration, as follows:

It is obvious to Us that CHED Resolution No. 181-96 is immediately executory in character, the pendency of a Motion for Reconsideration notwithstanding.

After considering the Opposition and for lack of merit, the Motion for Reconsideration is hereby denied.

SO ORDERED.

On October 28, 1996, petitioners requested transfer of case records to the Department of Education, Culture and Sports (DECS) from the CHED.Petitioners claimed that it is the DECS, not CHED, which

has jurisdiction over expulsion cases, thus, necessitating the transfer of the case records of Discipline Case No. 9495-3-25121 to the DECS.

On November 4, 1996, in view of the dismissal of the petition for certiorari in CA-G.R. SP No. 38719 and the automatic lifting of the writ of preliminary injunction, private respondent Aguilar filed an urgent motion to reiterate writ of preliminary injunction dated September 25, 1995 before respondent RTC Judge of Manila.chanroblesvirtuallawlibrary

On January 7, 1997, respondent Judge issued its questioned order granting private respondent Aguilars urgent motion to reiterate preliminary injunction.The pertinent portion of the order reads:

In light of the foregoing, petitioner Aguilars urgent motion to reiterate writ of preliminary injunction is hereby granted, and respondents motion to dismiss is denied.

The writ of preliminary injunction dated September 25, 1995 is declared to be in force and effect.

Let a copy of this Order and the writ be served personally by the Courts sheriff upon the respondents at petitioners expense.

SO ORDERED.

Accordingly, private respondent Aguilar was allowed to conditionally enroll in petitioner DLSU, subject to the continued effectivity of the writ of preliminary injunction dated September 25, 1995 and to the outcome of Civil Case No. 95-74122.

On February 17, 1997, petitioners filed the instant petition.

On June 15, 1998, We issued a TRO as prayed for by the urgent motion for the issuance of a TRO dated June 4, 1998 of petitioners, and enjoined respondent Judge from implementing the writ of preliminary injunction dated September 25, 1995 issued in Civil Case No. 95-74122, effective immediately and until further orders from this Court.

On March 27, 2006, private respondent Aguilar filed his manifestation stating that he has long completed his course at petitioner DLSU.He finished and passed all his enrolled subjects for the second trimester of 1997-1998, as indicated in his transcript of records issued by DLSU.However, despite having completed all the academic requirements for his course, DLSU has not issued a certificate of completion/graduation in his favor.

Issues

We are tasked to resolve the following issues:

1. Whether it is the DECS or the CHED which has legal authority to review decisions of institutions of higher learning that impose disciplinary action on their students found violating disciplinary rules.

2.

Whether or not petitioner DLSU is within its rights in expelling private respondents.

2.acralawWere private respondents accorded due process of law?

2.bcralawCan petitioner DLSU invoke its right to academic freedom?

2.ccralawWas the guilt of private respondents proven by substantial evidence?

3.cralawWhether or not the penalty imposed by DLSU on private respondents is proportionate to their misdeed.

Our Ruling

Prefatorily, there is merit in the observation of petitioners that while CHED Resolution No. 181-96 disapproved the expulsion of other private respondents, it nonetheless authorized their exclusion from petitioner DLSU.However, because of the dismissal of the CA case, petitioner DLSU is now faced with the spectacle of having two different directives from the CHED and the respondent Judge CHED ordering the exclusion of private respondents Bungubung, Reverente, and Valdes, Jr., and the Judge ordering petitioner DLSU to allow them to enroll and complete their degree courses until their graduation. This is the reason We opt to decide the whole case on the merits, brushing aside technicalities, in order to settle the substantial issues involved.This Court has the power to take cognizance of the petition at bar due to compelling reasons, and the nature and importance of the issues raised warrant the immediate exercise of Our jurisdiction.This is in consonance with our case law now accorded nearreligious reverence that rules of procedure are but tools designed to facilitate the attainment of justice, such that when its rigid application tends to frustrate rather than promote substantial justice, this Court has the duty to suspend their operation.chanroblesvirtuallawlibrary

I. It is the CHED, not DECS, which has the power of supervision and review over disciplinary cases decided by institutions of higher learning.

cralawAng CHED, hindi ang DECS, ang may kapangyarihan ng pagsubaybay at pagrepaso sa mga desisyong pandisiplina ng mga institusyon ng mas mataas na pag-aaral.

Petitioners posit that the jurisdiction and duty to review student expulsion cases, even those involving students in secondary and tertiary levels, is vested in the DECS not in the CHED.In support of their stance, petitioners cite Sections 4, 15(2) & (3), 54, 57(3) and 70 of Batas Pambansa (B.P.) Blg. 232, otherwise known as the Education Act of 1982.

According to them, Republic Act (R.A.) No. 7722 did not transfer to the CHED the DECS power of supervision/review over expulsion cases involving institutions of higher learning.They say that unlike B.P. Blg. 232, R.A. No. 7722 makes no reference to the right and duty of learning institutions to develop moral character and instill discipline among its students.The clear concern of R.A. No. 7722 in the creation of the CHED was academic, i.e., the formulation, recommendation, setting, and development of academic plans, programs and standards for institutions of higher learning.The enumeration of CHEDs powers and functions under Section 8 does not include supervisory/review powers in student disciplinary cases.The reference in Section 3 to CHEDs coverage of institutions of higher education is limited to the powers and functions specified in Section 8.The Bureau of Higher Education, which the CHED has replaced and whose functions and responsibilities it has taken over, never had any authority over student disciplinary cases.

We cannot agree.

On May 18, 1994, Congress approved R.A. No. 7722, otherwise known as An Act Creating the Commission on Higher Education, Appropriating Funds Thereof and for other purposes.

Section 3 of the said law, which paved the way for the creation of the CHED, provides:

Section 3.Creation of the Commission on Higher Education. In pursuance of the abovementioned policies, the Commission on Higher Education is hereby created, hereinafter referred to as Commission.

The Commission shall be independent and separate from the Department of Education, Culture and Sports (DECS) and attached to the office of the President for administrative purposes only.Its coverage shall be both public and private institutions of higher education as well as degree-granting programs in all post secondary educational institutions, public and private.

The powers and functions of the CHED are enumerated in Section 8 of R.A. No. 7722.They include the following:

Sec. 8. Powers and functions of the Commission. The Commission shall have the following powers and functions:

xxxx

n) promulgate such rules and regulations and exercise such other powers and functions as may be necessary to carry out effectively the purpose and objectives of this Act; and

o) perform such other functions as may be necessary for its effective operations and for the continued enhancement of growth or development of higher education.

Clearly, there is no merit in the contention of petitioners that R.A. No. 7722 did not transfer to the CHED the DECS power of supervision/review over expulsion cases involving institutions of higher learning.

First, the foregoing provisions are all-embracing. They make no reservations of powers to the DECS insofar as institutions of higher learning are concerned.They show that the authority and supervision over all public and private institutions of higher education, as well as degree-granting programs in all post-secondary educational institutions, public and private, belong to the CHED, not the DECS.

Second, to rule that it is the DECS which has authority to decide disciplinary cases involving students on the tertiary level would render nugatory the coverage of the CHED, which is both public and private institutions of higher education as well as degree granting programs in all post secondary educational institutions, public and private.That would be absurd.

It is of public knowledge that petitioner DLSU is a private educational institution which offers tertiary degree programs. Hence, it is under the CHED authority.

Third, the policy of R.A. No. 7722 is not only the protection, fostering and promotion of the right of all citizens to affordable quality education at all levels and the taking of appropriate steps to ensure that education shall be accessible to all. The law is likewise concerned with ensuring and protecting academic freedom and with promoting its exercise and observance for the continued intellectual growth of students, the advancement of learning and research, the development of responsible and effective leadership, the education of high-level and middle-level professionals, and the enrichment of our historical and cultural heritage.

It is thus safe to assume that when Congress passed R.A. No. 7722, its members were aware that disciplinary cases involving students on the tertiary level would continue to arise in the future, which would call for the invocation and exercise of institutions of higher learning of their right to academic freedom.

Fourth, petitioner DLSU cited no authority in its bare claim that the Bureau of Higher Education, which CHED replaced, never had authority over student disciplinary cases. In fact, the responsibilities of other government entities having functions similar to those of the CHED were transferred to the CHED.chanroblesvirtuallawlibrary

Section 77 of the MRPS on the process of review in student discipline cases should therefore be read in conjunction with the provisions of R.A. No. 7722.

Fifth, Section 18 of R.A. No. 7722 is very clear in stating that [j]urisdiction over DECS-supervised or chartered state-supported post-secondary degree-granting vocational and tertiary institutions shall be transferred to the Commission [On Higher Education]. This provision does not limit or distinguish thatwhat is being transferred to the CHED is merely the formulation, recommendation,

setting and development of academic plans, programs and standards for institutions of higher learning, as what petitioners would have us believe as the only concerns of R.A. No. 7722. Ubi lex non distinguit nec nos distinguere debemus: Where the law does not distinguish, neither should we.

To Our mind, this provision, if not an explicit grant of jurisdiction to the CHED, necessarily includes the transfer to the CHED of any jurisdiction which the DECS might have possessed by virtue of B.P. Blg. 232 or any other law or rule for that matter.

IIa. Private respondents were accorded due process of law.

Ang mga private respondents ay nabigyan ng tamang proseso ng batas.

The Due Process Clause in Article III, Section 1 of the Constitution embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our entire history.The constitutional behest that no person shall be deprived of life, liberty or property without due process of law is solemn and inflexible.chanroblesvirtuallawlibrary

In administrative cases, such as investigations of students found violating school discipline, [t]here are withal minimum standards which must be met before to satisfy the demands of procedural due process and these are: that (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to answer the charges against them and with the assistance if counsel, if desired;(3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.chanroblesvirtuallawlibrary

Where a party was afforded an opportunity to participate in the proceedings but failed to do so, he cannot complain of deprivation of due process.Notice and hearing is the bulwark of administrative due process, the right to which is among the primary rights that must be respected even in administrative proceedings.The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain ones side or an opportunity to seek reconsideration of the action or ruling complained of.So long as the party is given the opportunity to

advocate her cause or defend her interest in due course, it cannot be said that there was denial of due process.chanroblesvirtuallawlibrary

A formal trial-type hearing is not, at all times and in all instances, essential to due process it is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present supporting evidence on which a fair decision can be based.To be heard does not only mean presentation of testimonial evidence in court one may also be heard through pleadings and where the opportunity to be heard through pleadings is accorded, there is no denial of due process.chanroblesvirtuallawlibrary

Private respondents were duly informed in writing of the charges against them by the DLSU-CSB Joint Discipline Board through petitioner Sales.They were given the opportunity to answer the charges against them as they, in fact, submitted their respective answers.They were also informed of the evidence presented against them as they attended all the hearings before the Board.Moreover, private respondents were given the right to adduce evidence on their behalf and they did.Lastly, the Discipline Board considered all the pieces of evidence submitted to it by all the parties before rendering its resolution in Discipline Case No. 9495-3-25121.

Private respondents cannot claim that they were denied due process when they were not allowed to cross-examine the witnesses against them.This argument was already rejected in Guzman v. National Universitywhere this Court held that x x x the imposition of disciplinary sanctions requires observance of procedural due process.And it bears stressing that due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice.The proceedings in student discipline cases may be summary; and cross examination is not, x x x an essential part thereof.

IIb. Petitioner DLSU, as an institution of higher learning, possesses academic freedom which includes determination of who to admit for study. Ang petitioner DLSU, bilang institusyon ng mas mataas na pag-aaral, ay nagtataglay ng kalayaang akademiko na sakop ang karapatang pumili ng mga mag-aaral dito.

Section 5(2), Article XIV of the Constitution guaranties all institutions of higher learning academic freedom.This institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly when the overriding public interest calls for some restraint. According to present jurisprudence, academic freedom encompasses the independence of an academic institution to determine for itself (1) who may teach, (2) what may be taught, (3) how it shall teach, and (4) who may be admitted to study.

It cannot be gainsaid that the school has an interest in teaching the student discipline, a necessary, if not indispensable, value in any field of learning. By instilling discipline, the school teaches discipline.Accordingly, the right to discipline the student likewise finds basis in the freedom what to teach.Indeed, while it is categorically stated under the Education Act of 1982 that students have a right to freely choose their field of study, subject to existing curricula and to continue their course therein up to graduation, such right is subject to the established academic and disciplinary standards laid down by the academic institution.Petitioner DLSU, therefore, can very well exercise its academic freedom, which includes its free choice of students for admission to its school.

IIc. The guilt of private respondents Bungubung, Reverente and Valdes, Jr. was proven by substantial evidence.

cralawAng pagkakasala ng private respondents na sina Bungubung, Reverente at Valdes, Jr. ay napatunayan ng ebidensiyang substansyal.

As has been stated earlier, private respondents interposed the common defense of alibi.However, in order that alibi may succeed as a defense, the accused must establish by clear and convincing evidence (a) his presence at another place at the time of the perpetration of the offense and (b) the physical impossibility of his presence at the scene of the crime.chanroblesvirtuallawlibrary On the other hand, the defense of alibi may not be successfully invoked where the identity of the assailant has been established by witnesses. Positive identification of accused where categorical and consistent, without any showing of ill motive on the part of the eyewitness testifying, should prevail over the alibi and denial of appellants whose testimonies are not substantiated by clear and convincing evidence.Well-settled is the rule that denial and alibi, being weak defenses, cannot overcome the positive testimonies of the offended parties.chanroblesvirtuallawlibrary

Courts reject alibi when there are credible eyewitnesses to the crime who can positively identify the accused.Alibi is an inherently weak defense and courts must receive it with caution because one can easily fabricate an alibi.Jurisprudence holds that denial, like alibi, is inherently weak and crumbles in light of positive declarations of truthful witnesses who testified on affirmative matters that accused were at the scene of the crime and were the victims assailants.As between categorical testimonies that ring of truth on one hand and a bare denial on the other, the former must prevail.Alibi is the weakest of all defenses for it is easy to fabricate and difficult to disprove, and it is for this reason that it cannot prevail over the positive identification of accused by the witnesses.

The required proof in administrative cases, such as in student discipline cases, is neither proof beyond reasonable doubt nor preponderance of evidence but only substantial evidence.According to Ang Tibay v. Court of Industrial Relations, it means such reasonable evidence as a reasonable mind might accept as adequate to support a conclusion.

Viewed from the foregoing, We reject the alibi of private respondents Bungubung, Valdes Jr., and Reverente. They were unable to show convincingly that they were not at the scene of the crime on March 29, 1995 and that it was impossible for them to have been there.Moreover, their alibi cannot prevail over their positive identification by the victims.

We hark back to this Courts pronouncement affirming the expulsion of several students found guilty of hazing:

No one can be so myopic as to doubt that the immediate reinstatement of respondent students who have been investigated and found guilty by the Disciplinary Board to have violated petitioner universitys disciplinary rules and standards will certainly undermine the authority of the administration of the school. This we would be most loathe to do.

More importantly, it will seriously impair petitioner universitys academic freedom which has been enshrined in the 1935, 1973 and the present 1987 Constitution.

cralawCertainly, private respondents Bungubung, Reverente and Valdes, Jr. do not deserve to claim a venerable institution as their own, for they may foreseeably cast a malevolent influence on the students currently enrolled, as well as those who come after them.It must be borne in mind that universities are

established, not merely to develop the intellect and skills of the studentry, but to inculcate lofty values, ideals and attitudes; nay, the development, or flowering if you will, of the total man.chanroblesvirtuallawlibrary

cralawAs for private respondent Aguilar, however, We are inclined to give credence to his alibi that he was at CampCrame in Quezon City at the time of the incident in question on March 29, 1995.This claim was amply corroborated by the certification that he submitted before the DLSU-CSB Joint Discipline Board, to wit:

CERTIFICATION

TO WHOM THIS MAY CONCERN:

We, the undersigned, hereby declare and affirm by way of this Certification that sometime on March 29, 1995, at about and between 4:30 P.M. and 5:30 P.M., we were together with Alvin A. Aguilar, at Kiangan Hall, inside Camp Crame, Quezon City, meeting in connection with an affair of our class known as Class 7, Batch 89 of the Philippine Constabulary discussing on the proposed sponsorship of TAU GAMMA PHI from said Batch 89 affair.

That the meeting was terminated at about 6:30 P.M. that evening and Alvin Aguilar had asked our permission to leave and we saw him leave Camp Crame, in his car with the driver.

April 18, 1995, Camp Crame, Quezon City.

cralawThe said certification was duly signed by PO3 Nicanor R. Faustino (Anti-Organized Crime CIC, NCR), PO3 Alejandro D. Deluviar (ODITRM, Camp Crame, Quezon City), PO2 Severino C. Filler (TNTSC, Camp Crame, Quezon City), and PO3 Ireneo M. Desesto (Supply Center, PNPLSS).The rule is that alibi assumes significance or strength when it is amply corroborated by credible and disinterested witnesses.It is true that alibi is a weak defense which an accused can easily fabricate to escape criminal liability.But where the prosecution evidence is weak, and betrays lack of credibility as to the identification of defendant, alibi assumes commensurate strength.This is but consistent with the presumption of innocence in favor of accused.chanroblesvirtuallawlibrary

Alibi is not always undeserving of credit, for there are times when accused has no other possible defense for what could really be the truth as to his whereabouts at the crucial time, and such defense may, in fact, tilt the scales of justice in his favor. III. The penalty of expulsion imposed by DLSU on private respondents is disproportionate to their misdeed.

Ang parusang expulsion na ipinataw ng DLSU sa private respondents ay hindi angkop sa kanilang pagkakasala.

It is true that schools have the power to instill discipline in their students as subsumed in their academic freedom and that the establishment of rules governing university-student relations, particularly those pertaining to student discipline, may be regarded as vital, not merely to the smooth and efficient operation of the institution, but to its very survival.This power, however, does not give them the untrammeled discretion to impose a penalty which is not commensurate with the gravity of the misdeed. If the concept of proportionality between the offense committed and the sanction imposed is not followed, an element of arbitrariness intrudes.That would give rise to a due process question.chanroblesvirtuallawlibrary

We agree with respondent CHED that under the circumstances, the penalty of expulsion is grossly disproportionate to the gravity of the acts committed by private respondents Bungubung, Reverente, and Valdes, Jr.Each of the two mauling incidents lasted only for few seconds and the victims did not suffer any serious injury.Disciplinary measures especially where they involve suspension, dismissal or expulsion, cut significantly into the future of a student.They attach to him for life and become a mortgage of his future, hardly redeemable in certain cases.Officials of colleges and universities must be anxious to protect it, conscious of the fact that, appropriately construed, a disciplinary action should be treated as an educational tool rather than a punitive measure. Accordingly, We affirm the penalty of exclusion only, not expulsion, imposed on them by the CHED.As such, pursuant to Section 77(b) of the MRPS, petitioner DLSU may exclude or drop the names of the said private respondents from its rolls for being undesirable, and transfer credentials immediately issued.

WHEREFORE, the petition is PARTIALLY GRANTED.The Court of Appeals Resolutions dated July 30, 1996 and dated October 15, 1996, and Regional Trial Court of Manila, Branch 36, Order dated January 7, 1997 are ANNULLED AND SET ASIDE, while CHED Resolution 181-96 dated May 14, 1996 is AFFIRMED.

Petitioner DLSU is ordered to issue a certificate of completion/graduation in favor of private respondent Aguilar.On the other hand, it may exclude or drop the names of private respondents Bungubung, Reverente, and Valdes, Jr. from its rolls, and their transfer credentials immediately issued.

SO ORDERED.