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SUPREME COURT
Manila
EN BANC
G.R. No. L-18566
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NARVASA, C.J.:
In connection with an agreement to salvage and refloat asunken vessel
and in payment of his share of the expenses of the salvage operations
therein stipulated petitioner Albino Co delivered to the salvaging firm on
September 1, 1983 a check drawn against the Associated Citizens' Bank,
postdated November 30, 1983 in the sum of P361,528.00. 1 The check was
deposited on January 3, 1984. It was dishonored two days later, the terselystated reason given by the bank being: "CLOSED ACCOUNT."
A criminal complaint for violation of Batas Pambansa Bilang 22 2 was filed by
the salvage company against Albino Co with the Regional Trial Court of
Pasay City. The case eventuated in Co's conviction of the crime charged,
and his being sentenced to suffer a term of imprisonment of sixty (60) days
and to indemnify the salvage company in the sum of P361,528.00.
Co appealed to the Court of Appeals. There he sought exoneration upon the
theory that it was reversible error for the Regional Trial Court to have relied,
as basis for its verdict of conviction, on the ruling rendered on September
21, 1987 by this Court in Que v. People, 154 SCRA 160 (1987) 3 i.e., that
a check issued merely to guarantee the performance of an obligation is
nevertheless covered by B.P. Blg. 22. This was because at the time of the
issuance of the check onSeptember 1, 1983, some four (4) years prior to the
promulgation of the judgment in Que v. People on September 21, 1987, the
delivery of a "rubber" or "bouncing" check as guarantee for an obligation
was not considered a punishable offense, an official pronouncement made
in a Circular of the Ministry of Justice. That Circular (No. 4),
dated December 15, 1981, pertinently provided as follows:
2.3.4. Where issuance of bouncing check is neither estafa
nor violation of B.P. Blg. 22.
Where the check is issued as part of an arrangement to
guarantee or secure the payment of an obligation, whether
pre-existing or not, the drawer is not criminally liable for
either estafa or violation of B.P. Blg. 22 (Res. No. 438, s.
1981, Virginia Montano vs. Josefino Galvez, June 19, 1981;
Res. No. 707, s. 1989; Alice Quizon vs. Lydia Calingo,
October 23, 1981, Res. No. 769, s. 1981, Alfredo Guido vs.
Miguel A. Mateo, et. al., November 17, 1981; Res. No. 589,
s. 1981, Zenaida Lazaro vs. Maria Aquino, August 7, 1981).
This administrative circular was subsequently reversed by another issued on
August 8, 1984 (Ministry Circular No. 12) almost one (1) year after Albino
Co had delivered the "bouncing" check to the complainant on September 1,
1983. Said Circular No. 12, after observing inter alia that Circular No. 4 of
December 15, 1981 appeared to have been based on "a misapplication of
the deliberation in the Batasang Pambansa, . . . (or) the explanatory note on
the original bill, i.e. that the intention was not to penalize the issuance of a
check to secure or guarantee the payment of an obligation," as follows: 4
Henceforth, conforming with the rule that an administrative
agency having interpreting authority may reverse its
relevant inquiry being, "has the law been violated?" The facts in Go
Chico are substantially different from those in the case at bar. In the former,
there was no official issuance by the Secretary of Justice or other
government officer construing the special law violated;15 and it was there
observed, among others, that "the defense . . . (of) an honest
misconstruction of the law under legal advice" 16 could not be appreciated as
a valid defense. In the present case on the other hand, the defense is that
reliance was placed, not on the opinion of a private lawyer but upon an
official pronouncement of no less than the attorney of the Government, the
Secretary of Justice, whose opinions, though not law, are entitled to great
weight and on which reliance may be placed by private individuals is
reflective of the correct interpretation of a constitutional or statutory
provision; this, particularly in the case of penal statutes, by the very nature
and scope of the authority that resides in as regards prosecutions for their
violation. 17 Senarillos vs. Hermosisima, supra, relied upon by the
respondent Court of Appeals, is crucially different in that in said case, as
in U.S. v. Go Chico, supra, no administrative interpretation antedated the
contrary construction placed by the Court on the law invoked.
This is after all a criminal action all doubts in which, pursuant to familiar,
fundamental doctrine, must be resolved in favor of the accused. Everything
considered, the Court sees no compelling reason why the doctrine of mala
prohibita should override the principle of prospectivity, and its clear
implications as herein above set out and discussed, negating criminal
liability.
WHEREFORE, the assailed decisions of the Court of Appeals and of the
Regional Trial Court are reversed and set aside, and the criminal
prosecution against the accused-petitioner is DISMISSED, with costs de
oficio.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32485 October 22, 1970
MAKASIAR, J.:.
This petition for declaratory relief was filed by Kay Villegas Kami, Inc.,
claiming to be a duly recognized and existing non-stock and non-profit
corporation created under the laws of the land, and praying for a
determination of the validity of Sec. 8 of R.A. No. 6132 and a declaration of
petitioner's rights and duties thereunder. In paragraph 7 of its petition,
petitioner avers that it has printed materials designed to propagate its
ideology and program of government, which materials include Annex B; and
that in paragraph 11 of said petition, petitioner intends to pursue its purposes
by supporting delegates to the Constitutional Convention who will propagate
its ideology.
Petitioner, in paragraph 7 of its petition, actually impugns because it quoted,
only the first paragraph of Sec. 8(a) on the ground that it violates the due
process clause, right of association, and freedom of expression and that it is
an ex post facto law.
The first three grounds were overruled by this Court when it held that the
questioned provision is a valid limitation on the due process, freedom of
expression, freedom of association, freedom of assembly and equal
protection clauses; for the same is designed to prevent the clear and present
danger of the twin substantive evils, namely, the prostitution of electoral
process and denial of the equal protection of the laws. Moreover, under the
balancing-of-interests test, the cleansing of the electoral process, the
guarantee of equal change for all candidates, and the independence of the
delegates who must be "beholden to no one but to God, country and
conscience," are interests that should be accorded primacy.1
The petitioner should therefore be accordingly guided by the
pronouncements in the cases of Imbong and Gonzales. 2
Reyes, J.B.L., Actg. C.J., Dizon, Makalintal and Castro, JJ., concur.
the question. Obviously, the word "law" in the qualifying clause "for purposes
not contrary to law" does not mean that an enactment of the legislature
forecloses the question with finality and sounds the death-knell. Laws that
would regulate the purposes for which associations and societies may be
formed or would declare their purposes mala prohibita must pass the usual
constitutional test of reasonableness and furthermore, must not abridge
freedom of speech and press.5
I therefore dissent from the Court's decision at bar for the same reason and
considerations stated in my separate dissenting opinion in the case
of Badoy.
# Separate Opinions
I only wish to add a few words on the statements in the main opinion
in Imbong-Gonzales that "(W)hile it may be true that a party's support of a
candidate is not wrong per se, it is equally true that Congress in the exercise
of the broad law-making authority can declare certain acts as mala
prohibita when justified by the exigencies of the times. One such act is the
party or organization support prescribed in Sec. 8(a), which ban is a valid
limitation on the freedom of association as well as expression, for the
reasons aforestated. Senator Tolentino emphasized that 'equality of chances
may be better attained by banning all organization support.' "
I trust that said statements were not intended, and should not be construed,
as endorsing the contention of Senator Tolentino, the Act's sponsor, that
"(T)he protection of the Constitution cannot be invoked for the right of
association when the purpose is a malum prohibitum because such purpose
would be "contrary to law" " and "(O)nce the ban (on party and organization
support) is approved into law, the freedom of association cannot be invoked
against it" since the Constitution decrees only that "(T)he right to form
associations or societies for purposes not contrary to law shall not be
abridged."4
Such a concept of malum prohibitum vis-a-vis the Constitutional guarantee
of freedom of association which has its root in the Malolos Constitution
would render sterile and meaningless the Constitutional safeguard, should
Congress be conceded, in the exercise of its broad law-making authority, the
power to strike down at any time associations and societies by the simple
expedient of declaring their purposes or certain activities, not wrong per
se as "contrary to law" ormala prohibita. I believe that such a concept begs
I therefore dissent from the Court's decision at bar for the same reason and
considerations stated in my separate dissenting opinion in the case
of Badoy.
I only wish to add a few words on the statements in the main opinion
in Imbong-Gonzales that "(W)hile it may be true that a party's support of a
candidate is not wrong per se, it is equally true that Congress in the exercise
of the broad law-making authority can declare certain acts as mala
prohibita when justified by the exigencies of the times. One such act is the
party or organization support prescribed in Sec. 8(a), which ban is a valid
limitation on the freedom of association as well as expression, for the
reasons aforestated. Senator Tolentino emphasized that 'equality of chances
may be better attained by banning all organization support.' "
I trust that said statements were not intended, and should not be construed,
as endorsing the contention of Senator Tolentino, the Act's sponsor, that
"(T)he protection of the Constitution cannot be invoked for the right of
association when the purpose is a malum prohibitum because such purpose
would be "contrary to law" " and "(O)nce the ban (on party and organization
support) is approved into law, the freedom of association cannot be invoked
against it" since the Constitution decrees only that "(T)he right to form
associations or societies for purposes not contrary to law shall not be
abridged."4
Such a concept of malum prohibitum vis-a-vis the Constitutional guarantee
of freedom of association which has its root in the Malolos Constitution
would render sterile and meaningless the Constitutional safeguard, should
Congress be conceded, in the exercise of its broad law-making authority, the
power to strike down at any time associations and societies by the simple
expedient of declaring their purposes or certain activities, not wrong per
se as "contrary to law" ormala prohibita. I believe that such a concept begs
the question. Obviously, the word "law" in the qualifying clause "for purposes
not contrary to law" does not mean that an enactment of the legislature
forecloses the question with finality and sounds the death-knell. Laws that
would regulate the purposes for which associations and societies may be
formed or would declare their purposes mala prohibita must pass the usual
December 2, 1948
PERFECTO, J.:
Petitioner challenges the jurisdiction of the Court of Appeals to continue
taking cognizance of the appeal in the election case of Fidel C. Querubin vs.
Felipe S. Mamuri, CA2843-R, concerning the mayoralty of Ilagan, Isabela,
because of the expiration of the three-month period provided for in section
178 of the Revised Election Code, which reads as follows:
Sec. 178. Appeal from the decision in election contests. From
any final decision rendered by the Court of First Instance in protest
against the eligibility or the election of provincial governors,
members of the provincial board, city councilors, and mayors, the
aggrieved party may appeal to the Court of Appeals or to the
Supreme Court, as the case may be, within five days after being
notified of the decision, for its revision, correction, annulment or
confirmation, and the appeal shall proceed as in a criminal case.
Such appeal shall be decided within three months after the filing of
the case in the office of the clerk of the court to which the appeal
has been taken. (C. A. 357-172.)
The record of the appealed case was received by the Court of Appeals on
May 22, 1948. On August 23, 1948, petitioner filed a motion to dismiss the
appeal on the ground that the three-month period provided for by section
178 of the Revised Election Code expired on August 22, 1948, and that,
consequently, the Court of Appeals had lost its jurisdiction over the case,
invoking to the effect the doctrine in Portillo vs. Salvani (54 Phil., 543)
holding mandatory a former legal provision that "all proceedings in electoral
contest shall be terminated within one year."
The motion to dismiss was denied on September 15, 1948, upon the ground
that the period within which appellant had to file his brief had not as yet
expired.
The provision of section 178 of the Revised Election Code, that the appeal in
election contents be decided "within three months after the filing of the case
in the office of the clerk of the court to which the appeal has been taken", the
same as the provision in section 177 of the same code requiring that the trial
court shall decide a protest within six months or one year from its filing when
contesting a municipal or a provincial office, is directory in nature. The
purpose of the law in sections 177 and 178 of the Revised Election Code is
to impress the need of speedy disposal of election contests, as imperatively
demanded by public interest. The terms of office of elective positions are
short. Any cloud as to the true result of an election should be dispelled as
soon as possible.
Public faith, confidence and cooperation, essential to the success of
government, are jeopardized by controversies as to who have been actually
chosen by the electorate. These controversies should be settled as soon as
possible. Doubts as to the true expression of the will of the people in polls
should be cleared out without delay. The legislative policy, as embodied in
sections 177 and 178 of the Revised Election Code, of hastening the
administration of justice in election contests, is aimed at making more
effective the constitutional principle that sovereignty resides in the people.
The lapse of the period of time provided for in said sections should not have
the effect of defeating the purposes of the system of judicial settlement of
protests.lawphil.net
ROMERO, J.:
In the instant petition for mandamus and prohibition with prayer for the
issuance of a temporary restraining order, petitioner submits for the Court's
adjudication the twin issues of whether or not the Solicitor General neglected
his public duty by withdrawing as counsel for the Republic of the Philippines
and the Presidential Commission on Good Government (PCGG) in cases he
had filed in court and whether or not the PCGG acted without or in excess of
jurisdiction in hiring private lawyers as a result of such withdrawal of
appearance.
Petitioner Ramon A. Gonzales, as a citizen taxpayer, filed the petition as a
class suit under Section 12, Rule 3 of the Rules of Court on the ground that
the subject matters involved are of common and general interest to all
Filipino citizens and taxpayers as they pertain to the enforcement of a public
duty and the prevention of unlawful expenditure of public funds.
According to the petitioner, the Solicitor General is the counsel for the
Republic and the PCGG in thirty-three (33) cases before this Court, one
hundred nine (109) cases in the Sandiganbayan, one (1) case in the
National Labor Relations Commission and another case in the Municipal
Trial Court or a total of one hundred forty-four (144) cases. 1 In December
1990, the Solicitor General withdrew as counsel in said cases through a
pleading entitled "Withdrawal of Appearance with Reservation." 2 The
pleading states:
The SOLICITOR GENERAL, to this Honorable Court,
hereby respectfully withdraws as counsel for plaintiff
Presidential Commission on Good Government (PCGG) in
the above-captioned case, with the reservation, however,
conformably with Presidential Decree No. 478, the
provisions of Executive Order No. 292 as well as the
decisional law of "Orbos v. Civil Service Commission, et al.,"
(G.R. No. 92561, September 12, 1990), to submit his
comment/observation on incidents/matters pending with this
(Sgd.) FR
I. CHAVEZ
IBP O.R. N
289417-2.
The Solicitor General filed a substantially similar pleading in the
cases where the Republic is a party.
As a result of such withdrawal of appearance, the PCGG hired forty (40)
private lawyers, nineteen (19) of whom are trial lawyers. They would receive
a monthly compensation of at least P10,000.00 plus appearance fee of
P1,700.00 in actual trial and/or P500.00 if trial is postponed. 3
Petitioner contends that since the Solicitor General's withdrawal of
appearance was made without any reason, it implied that it was "within the
absolute discretion" of said public official. Section 1 of Presidential Decree
No. 478 and Section 35 of the Administrative Code of 1987, however,
mandatorily require the Solicitor General to stand in the place of, and act for
the Republic and the PCGG in court. Therefore, the Solicitor General has
"no discretion to reject by withdrawing" as counsel for said entities.
Applying the ruling of this Court with respect to a fiscal in Sta. Rosa Mining
Co. v. Zabala, 4 the petitioner further states that: "Similarly, it is the duty of
the Solicitor General to appear for the Republic and the PCGG, hence
regardless of his personal convictions or opinions, he must proceed to
discharge his duty (not withdraw, which is equivalent to refusal to
prosecute), and let the court decide the merits of the case." 5
Moreover, petitioner avers that the Solicitor General cannot withdraw his
appearance "with reservation" nor can he file his "comment/observation on
the incident/matters" after such withdrawal because by ceasing to appear as
counsel, he loses his standing in court. Unless a case involves the
constitutionality of a treaty, law, ordinance or executive order for which Rule
3 Section 23 of the Rules of Court 6 mandates his appearance, the Solicitor
agencies" simply means that the Solicitor General is called upon to render
assistance to the PCGG and whether or not such discretion is required by
the Commission is a matter of discretion on its part. Such provision does not
preclude the PCGG from engaging the services of private lawyers in the
same way that it is "clearly authorized to hire accountants, appraisers,
researchers and other professionals as it performs its functions." Since,
upon the dictates of legal and practical necessity, it has hired lawyers in the
United States and in Switzerland, "it may similarly hire Filipino lawyers in
prosecuting its Philippine cases." 13
The PCGG further asserts that the hiring of private lawyers is "not an ultra
vires" act but a "means by which (it) can effectively exercise its powers." It
emphasizes the fact that it hired private lawyers "only after the Officer of the
Solicitor General had unilaterally withdrawn its appearance" for the PCGG in
the various pending PCGG-instituted cases. Its own Litigation Division,
which was constituted after the Solicitor General's withdrawal, is "sorely
undermanned" but it has to contend with "affluent and influential individuals
and entities" who can "afford to hire skilled lawyers and organize vast
litigation networks." The PCGG tried to seek the assistance of the
Department of Justice and the Office of the Government Corporate Counsel
but only the former sent two additional prosecutors to handle its cases. 14
The PCGG clarifies that its powers are circumscribed not only by the
executive orders aforementioned but also by the inherent police power of the
State. By hiring private lawyers, it was merely trying to assist the President
of the Philippines in protecting the interest of the State. As such, it was
acting as an alter ego of the President and therefore, it was the Executive
which determined the necessity of engaging the services of private
prosecutors. Contending that "overwhelming necessity" impelled it to hire
private lawyers, the PCGG avers that inasmuch as the Central Bank of the
Philippines or the Philippine National Bank may engage the services of
private lawyers, with more reason may it be allowed to hire private
prosecutors after it was abandoned by the Solicitor General in the
prosecution of the ill-gotten wealth cases. Consequently, "the Solicitor
General's withdrawal of assistance is tantamount to his tacit approval of the
PCGG's hiring of private prosecutors in replacement of the solicitors
handling the said civil cases." 15
The PCGG concludes that the reasonableness of the compensation for its
hired lawyers can hardly be questioned considering the expertise of said
lawyers and the complexity of the cases they would be handling for the
PCGG. Thus, the prayer for a preliminary injunction must be denied
otherwise "the harm that would be done would be far greater than the
perceived mischief petitioner seeks to prevent." 16
Solicitor General Francisco I. Chavez inhibits himself from appearing in this
case "considering that as far as the Office of the Solicitor General (OSG for
brevity) is concerned, the subject is a closed matter among the OSG, the
PCGG and the Courts." 17 In the comment filed by Assistant Solicitor General
Edgardo L. Kilayko and Solicitor Iderlina P. Pagunuran, the OSG sets out at
length the history of the PCGG from its creation until the filing in the
Sandiganbayan of thirty-nine (39) "prima facie cases" for ill-gotten wealth
against former President Marcos and his cronies. As suits and countersuits
stemmed from the original thirty-nine (39) civil cases, "the OSG had been
put to a tremendous task and thus invariably in urgent need of being
consulted or informed by the PCGG of the facts and circumstances material
to the prosecution and progress not only of the original 39 civil cases, but
also of all kinds of "incidents."
Nonetheless, the OSG lawyers faced the challenge and the odds if only to
live up to their task as "the best lawyers there are in the country." The OSG
further explains: 18
On many a time, however a time, however, the lack of the
above-mentioned consultation or information resulted in
situations that rendered the OSG unavoidably incapable of
performing its functions and duties as Lawyer of the
Government, not only as mandated upon it by law and as
spelled out in Orbos v. CSC, G.R. No. 92561, September
12, 1990, but also in consonance with its office motto:
"Integrity In Advocacy."
Once the OSG argued before the Sandiganbayan that an
asset was under sequestration, only to be informedby the
adverse party waving a document before the
Sandiganbayan Justices that the sequestration had earlier
been lifted, with a PCGG resolution, the document, to boot
(Razon case). Then, again, OSG argued, even before this
Honorable Court, that an ill-gotten asset had "mysteriously"
disappeared, only to be informed by the Honorable Court,
In arguing that the instant petition should be dismissed, the OSG contends
that this case has become moot and academic as this very Court had
resolved to allow the withdrawal of appearance of the Solicitor General in all
the cases pending before it "with reservation, conformably with PD No. 478,
Executive Order No. 292, as well as the doctrine laid down in 'Orbos v. Civil
Service Commission, et al.,' G.R. No. 92561, September 12,
1990, . . ." 19 For its part, the Sandiganbayan had also resolved that "the
appearance of the Solicitor General is deemed withdrawn to be substituted
by the PCGG's legal panel." 20
that since P.D. No. 478 mandates that "the Solicitor General as law office of
the government with the duty to appear for the PCGG," no implication from
the express powers of (the) PCGG can stand against the language of P.D.
No. 478. On the other hand, the law regarding the PCGG and that regarding
the Solicitor General should be harmonized. 25
The OSG maintains further that the instant petition does not present a case
and controversy as the petitioner himself does not even have a "court
standing" and a "litigable interest." All the petitioner seeks is an "advisory
opinion." The OSG asserts that the "incident" (referring to the Solicitor
General's withdrawal of appearance) should be distinguished from that
in JPC Enterprise, Inc. v. Court of Appeals, et al., 21 wherein the Assets
Privatization Trust (APT) decided to appear for itself because the law names
the Minister of Justice only as its ex oficio legal adviser while by itself it can
file suits and institute proceedings and engage external expertise in the
fulfillment of its tasks. However, since the APT has no personality of its own,
it should have appeared through the Solicitor General. The OSG argues that
said "adversarial incident" is not present in this case.
In his reply to the comments of the PCGG and the OSG, the petitioner
insists that although as between the Solicitor General and the PCGG, this
case may have been rendered moot and academic, as between him on the
one hand and the Solicitor General and the PCGG on the other hand, a "real
controversy" still exists and the issues raised herein have not ceased to
exist either. Moreover, a judgment of prohibition and mandamus would have
a "practical legal effect and can be enforced." 22
Citing Miguel v. Zulueta, 23 and Taada v. Tuvera, 24 petitioner asserts that
he has a standing in court because where a question of public right is
involved and the object of the mandamus is the enforcement of a public
duty, the relator need not show any legal or special interest in the result of
the proceeding. It is sufficient that, as a citizen, he is interested in having the
laws executed and the duty in question enforced.
The petitioner rebuts the PCGG's contention that its power to hire private
lawyers may be implied from its expressly enumerated powers. He asserts
The Court considers these pleadings sufficient bases for resolving this
petition and, on account of the importance and imperativeness of the issues
raised herein, the filing of memoranda by the parties is dispensed with.
issue is best resolved by a close scrutiny of the nature and extent of the
power and authority lodged by law on the Solicitor General.
At this juncture, a flashback on the statutory origins of the Office of the
Solicitor General is in order. Incorporated in Act No. 136 dated June 11,
1901 28 providing for the organization of courts in the Philippine Islands was
Chapter III entitled "The Attorney General." Section 40 states:
There shall be an Attorney-General for the Philippine
Islands, to be appointed by the Philippine Commission . . .
The catalog of his duties includes the following:
He shall prosecute or defend therein all causes, civil and
criminal, to which the Government of the Philippine Islands,
or any officer thereof, in his official capacity, is a party . . . 29
Section 41 further provides:
There shall be an officer learned in the law to assist the
Attorney-General in the performance of all his duties, called
the Solicitor-General who shall be appointed by the
Commission . . . In case of a vacancy in the office of
Attorney-General, or of his absence or disability, the
Solicitor-General shall have power to exercise the duties of
that office. Under the supervision of the Attorney-General, it
shall be the especial duty of the Solicitor-General to conduct
and argue suits and appeals in the Supreme Court, in which
the Philippine Government is interested, and the AttorneyGeneral may, whenever he deems it for the interest of the
Philippine Government, either in person conduct and argue
any case in any court of the Philippine Islands in which the
Philippine Government is interested or may direct the
Solicitor General to do so. (Emphasis supplied)
Six months later, a law was passed reorganizing the Office of the AttorneyGeneral and providing for the appointment of the said official and the
Solicitor General by the Civil Governor and for an increase in their salaries.
Their duties remained basically the same. 30
In the meantime, Act No. 222 was passed on September 5, 1901 providing
for the organization of, among others, the Department of Finance and
Justice which embraced within its executive control the Bureau of Justice. 31
Under Act No. 2711, otherwise known as the Administrative Code of 1917,
the Bureau of Justice is specifically constituted "the law office of the
Government of the Philippine Islands and by it shall be performed duties
requiring the services of a law officer." 32 Its chief officials are the AttorneyGeneral and his assistant, the Solicitor General. 33
As principal law officer of the Government, the AttorneyGeneral shall have authority to act for and represent the
Government of the Philippine Islands, its officers, and
agents in any official investigation, proceeding, or matter
requiring the services of a lawyer. 34
In 1932, the office of the Attorney-General was phased out and his functions
were assumed by the Secretary of Justice. 35Subsequently, the Bureau of
Justice came to be known as the Office of the Solicitor General, 36 headed
by the Solicitor General. 37
Parenthetically, these institutions were patterned after the Office of AttorneyGeneral, created by the First U.S. Congress in the Judiciary Act of 1789
which called for a "meet person, learned in the law, to act as AttorneyGeneral for the U.S." 38When the Department of Justice was established in
1870, the position of Solicitor-General was created as an assistant to the
Attorney-General. 39 Over a century later, their respective positions and
functions remain the same. The Attorney-General of the United States,
appointed by the President with the advice and consent of the Senate, is
now the head of the Department of Justice. 40 In the same manner, a
Solicitor General, learned in the law, is appointed to assist the AttorneyGeneral in the performance of his duties. 41
In contrast, the Solicitor-General of the Philippines, emerging from the
shadow of the Attorney-General and later, of the Secretary of Justice, has
come to his own. On July 20, 1948, Republic Act. No. 335, amending
Section 1659 of the Administrative Code, bestowed on him the rank of
Undersecretary of a Department. Subsequently, a series of amendatory laws
designed to enlarge the complement of the Office of the Solicitor General
was enacted 42 until on June 4, 1974, by virtue of Presidential Decree No.
478, its pivotal role in the government became clearly defined and
delineated.
During the martial law years, President Ferdinand E. Marcos leaned heavily
on his Solicitor General to provide legal underpinnings of his official acts.
Reflective of the tremendously enhanced power of the official and the
position was Executive Order No. 454 enacted on September 23, 1975,
conferring upon the Solicitor General the rank of a member of the
Cabinet "with all the rights, honors and privileges pertaining to the position."
Said executive order was superseded by Executive Order No. 473 dated
August 12, 1976 "making the Solicitor General a member of the
Cabinet." These executive orders were capped by Executive Order No. 552
dated August 14, 1979 elevating the OSG into a Ministry with the same
powers and functions defined in P.D. Nos. 478 and 1347.
P.D. 478 became, as it were, the Magna Carta of the Office of the Solicitor
General. After the change of administration, or on July 25, 1987, President
Corazon C. Aquino signed into law Executive Order No. 292 instituting the
Administrative Code of 1987. Under Book IV, Title III, Chapter 12 thereof, the
Office of the Solicitor General is described as an "independent and
autonomous office attached to the Department of Justice." Headed by the
Solicitor General, "who is the principal law officer and legal defender of the
Government," the Office shall have a Legal Staff composed of fifteen (15)
Assistant Solicitors General and such number of Solicitors and Trial
Attorneys "as may be necessary to operate the Office which shall divided
into fifteen (15) divisions. 43 Among its powers and functions are the
following which are relevant to the issues:
Sec. 35. Powers and Functions. The office of the
Solicitor General shall represent the Government of the
Philippines, its agencies and instrumentalities and its
officials and agents in any litigation, proceeding,
investigation or matter requiring the services of a lawyer.
When authorized by the President or head of the office
concerned, it shall also represent government owned or
controlled corporations. The Office of the Solicitor General
shall constitute the law office of the Government, and, as
such, shall discharge duties requiring the services of a
lawyer. (Emphasis supplied.) It shall have the following
specific powers and functions:
and moves of the legal battles of the different arms of the government.
Surely, the economy factor, too, must have weighed heavily in arriving at
such a decision.
It is patent that the intent of the lawmaker was to give the designated official,
the Solicitor General, in this case, the unequivocal mandate to appear for
the government in legal proceedings. Spread out in the laws creating the
office is the discernible intent which may be gathered from the term "shall,"
which is invariably employed, from Act No. 136 (1901) to the more recent
Executive Order No. 292 (1987).
Under the principles of statutory construction, so familiar even to law
students, the term "shall" is nothing if not mandatory.
In common or ordinary parlance and in its ordinary
significance, the term "shall" is a word of command, and one
which has always and which must be given a compulsory
meaning, and it is generally imperative or mandatory. It has
the invariable significance of operating to impose a duty
which may be enforced, particularly if public policy is in
favor of this meaning or when public interest is involved, or
where the public or persons have rights which ought to be
exercised or enforced, unless a contrary intent appears. 45
The presumption is that the word "shall" in a statute is used
in an imperative, and not in a directory, sense. If a different
interpretations if sought, it must rest upon something in the
character of the legislation or in the context which will justify
a different meaning. 46
Exactly what is the signification of the mandate for the OSG
"to represent the Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any litigation, proceeding,
investigations or matter requiring the services of the lawyer?"
To "represent" is standing in place, supplying the place, or
performing the duties or exercising the rights, of the party
represented; to speak or act with authority on behalf of
another; to conduct and control proceedings in court on
behalf of another. 47
The decision of this Court as early as 1910 with respect to the duties of
Attorney-General well applies to the Solicitor General under the facts of the
present case. The Court then declared:
In this jurisdiction, it is the duty of the Attorney General "to
perform the duties imposed upon him by law" and "he shall
prosecute all causes, civil and criminal, to which the
Government of the Philippines Islands, or any officer
thereof, in his official capacity, is a party . . ." 48
Being a public officer, the Solicitor General is "invested with some portion of
the sovereign functions of the government, to be exercised by him for the
benefit of the public." 49 Another role of the Solicitor General is an officer of
the Court, in which case he is called upon "to share in the task and
responsibility of dispensing justice and resolving disputes;" therefore, he
may be enjoined in the same manner that a special prosecutor was sought
enjoined by this Court from committing any act which may tend to "obstruct,
pervert or impede and degrade the administration of justice." 50
In one case where a fiscal manifested before the trial court that he would not
prosecute the case in court for insufficiency of evidence after his motion to
dismiss had been denied, this Court granted a petition for mandamus to
compel him to prosecute the case. We declared:
Notwithstanding his personal convictions or opinions, the
fiscal must proceed with his duty of presenting evidence to
the Court to enable the court to arrive at its own
independent judgment as to the culpability of the accused.
The fiscal should not shirk from his responsibility much less
leave the prosecution of the case at the hands of a private
prosecutor . . . In the trial of criminal cases, it is the duty of
the public prosecutor to appear for the government since an
offense is an outrage to the sovereignty of the State . . . This
is so because "the prosecuting officer is the representative
not of an ordinary party to a controversy but of a sovereignty
where obligation to govern impartially is as compelling as its
obligations to govern at all; and whose interest, therefore, in
criminal prosecution is not that it shall win a case, but that
justice shall be done. As such, he is in a peculiar and very
This issuance was followed by Executive Order No. 2 dated March 12, 1986
freezing all assets and properties of Marcos, his family and cronies;
prohibiting their transfer, conveyance, encumbrance or concealment, and
requiring all persons in and outside of the Philippines who are in possession
of said properties to make full disclosure of the same to the PCGG.
On April 11, 1986, the PCGG promulgated its Rules and Regulations. A
pertinent provision states:
Sec. 10. Findings of the Commission. Based on the
evidence adduced, the Commission shall determine
whether there is reasonable ground to believe that the
asset, property or business enterprise in question constitute
ill-gotten wealth as described in Executive Orders Nos. 1
and 2. In the event of an affirmative finding, the
Commission shall certify the case to the Solicitor General
for appropriate action in accordance with law. Business,
properties, funds, and other assets found to be lawfully
acquired shall be immediately released and the writ of
sequestration, hold or freeze orders lifted accordingly.
(Emphasis supplied)
Thereafter, or on May 7, 1986, Executive Order No. 14 defining the
jurisdiction over cases involving such ill-gotten wealth was issued, it contains
the following provisions:
Sec. 1. Any provision of law to the contrary notwithstanding,
the Presidential Commission on Good Government, with the
assistance of the Solicitor General and other government
agencies, is hereby empowered to file and prosecute all
cases investigated by it under Executive Order No. 1, dated
February 28, 1986, and Executive Order No. 2, dated March
12, 1986, as may be warranted by its finding.
Sec. 2. The Presidential Commission on Good Government
shall file all such cases, whether civil or criminal, with the
Sandiganbayan, which shall have exclusive and original
jurisdiction thereof.
After filing a case, he may even move for its dismissal in the event that,
along the way, he realizes that prosecuting the case would not serve the
government's purposes. In other words, because he was appointed to the
position on account of his qualification as a man "learned in the law," the
Solicitor General is obligated to perform his functions and to perform them
well. He may not, however, abdicate his function through an arbitrary
exercise of his discretion. We find that a withdrawal of appearance on flimsy
or petty grounds is tantamount to withdrawing on no grounds at all and to a
dereliction of duty.
The Office of the Solicitor General repeatedly invoked the ruling in Orbos
v. Civil Service Commission, 57 which hardly constitutes authority to uphold
its position with respect to the withdrawal of the Solicitor General in the
instant case. On the contrary, in said case, this Court struck down private
respondent's motion to disqualify the OSG from appearing for petitioner
Department of Transportation and Communications Secretary Orbos. At the
risk of being repetitious, the parties were reminded that under Section 1 of
Presidential Decree No. 478
The Office of the Solicitor General shall represent the
Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any litigation,
proceeding, investigation, or matter requiring the services of
a lawyer. (Emphasis supplied)
This Court clarified that even when "confronted with a situation where one
government office takes an adverse position against another government
agency, as in this case, the Solicitor General should not refrain from
performing his duty as the lawyer of the government. It is incumbent upon
him to present to the court what he considers would legally uphold the best
interest of the government although it may run counter to a client's position.
In such an instance, the government office adversely affected by the position
taken by the Solicitor General, if it still believes in the merit of its case may
appear in its own behalf through its legal personnel or representative."
The Court further pointed out that it is not entirely impossible that the Office
of the Solicitor General may take a position adverse to his clients like the
Civil Service Commission and the National Labor Relations Commission,
among others, and even the People of the Philippines. In such instances,
however, it is not proper for the Solicitor General to simply decline to handle
stops short of representing "a public official at any stage of a criminal case
or in a civil suit for damages arising from a felony." 61
In instances such as the above, the OSG can, with reason, withdraw its
representation even if it has already entered its appearance. But the Solicitor
General, as the officially-mandated lawyer of the government, is not
empowered to take a similar step on the basis of a petty reason like
embarrassment, as that to which the individual lawyers assigned to appear
for their office were subjected. Had they not been too preoccupied with their
personal feelings, they could have checked themselves in time. For a sense
of professional responsibility and proper decorum would dictate that they
distinguish between the institution which, from the very beginning, had been
constituted as the law office of the Government and theindividuals through
whom its powers and duties are exercised. No emotions, of whatever kind
and degree, should be allowed to becloud their high sense of duty and
commitment to country and people.
The OSG itself admitted refraining from citing other incidents as additional
bases for the Solicitor General's withdrawal "as they are not of meat and
substance" but apparently, their overwhelming sense of shame overcame
them as the OSG was "rendered thereby a laughing stock in its
professionalism." 62
Now a word on the incidents that allegedly caused humiliation to the OSG
lawyers, thus provoking the Solicitor General into withdrawing his
appearance as counsel for the PCGG. No litigation can be assured of
success if counsel does not enjoy the confidence of his client. This is
manifested by, among other things, holding regular, constant and
untrammeled consultation with each other. Who can say but that if the
communication lines had been kept open between the OSG and PCGG, no
surprises would have been sprung on the former by the latter in open court?
Petitioner's claim that the Solicitor General could not withdraw his
appearance as lawyer of PCGG inasmuch as he had neither the consent of
his client nor the authority from the court, applying the pertinent provision of
the Rules of Court, is not well-taken. Here is no ordinary lawyer-client
relationship. Let it be remembered that the client is no less than the Republic
of the Philippines in whom the plenum of sovereignty resides. Whether
regarded as an abstract entity or an ideal person, it is to state the obvious
that it can only act through the instrumentality of the government which,
The questioned
Reconsideration.
Resolution
denied
petitioners
Motion
for
On the other hand, trial courts Decision, which was affirmed by the CA,
had disposed as follows:
FIRST DIVISION
WHEREFORE, judgment is hereby rendered as follows:
[G.R. No. 149927. March 30, 2004]
REPUBLIC OF THE PHILIPPINES, Represented by the Department of
Environment and Natural Resources (DENR) Under then
Minister ERNESTO R. MACEDA; and Former Government
Officials CATALINO MACARAIG, FULGENCIO S. FACTORAN,
ANGEL
C.
ALCALA,
BEN
MALAYANG,
ROBERTO
PAGDANGANAN, MARIANO Z. VALERA and ROMULO SAN
JUAN, petitioners, vs.
ROSEMOOR
MINING
AND
DEVELOPMENT CORPORATION, PEDRO DEL CONCHA,
and ALEJANDRO and RUFO DE GUZMAN, respondents.
DECISION
3. Making the Writ of preliminary injunction and the Writ of
Preliminary Mandatory Injunction issued as permanent.
PANGANIBAN, J.:
A mining license that contravenes a mandatory provision of the law
under which it is granted is void. Being a mere privilege, a license does not
vest absolute rights in the holder. Thus, without offending the due process
and the non-impairment clauses of the Constitution, it can be revoked by the
State in the public interest.
The Case
xxx
xxx
xxx
xxx
xxx
xxx
On September 27, 1996, the trial court rendered the herein questioned
decision.[6]
The trial court ruled that the privilege granted under respondents
license had already ripened into a property right, which was protected under
the due process clause of the Constitution. Such right was supposedly
violated when the license was cancelled without notice and hearing. The
cancellation was said to be unjustified, because the area that could be
covered by the four separate applications of respondents was 400
hectares. Finally, according to the RTC, Proclamation No. 84, which
confirmed the cancellation of the license, was an ex post facto law; as such,
it violated Section 3 of Article XVIII of the 1987 Constitution.
On appeal to the Court of Appeals, herein petitioners asked whether PD
463 or the Mineral Resources Development Decree of 1974 had been
violated by the award of the 330.3062 hectares to respondents in
accordance with Proclamation No. 2204. They also questioned the validity
of the cancellation of respondents Quarry License/Permit (QLP) No. 33.
Ruling of the Court of Appeals
Sustaining the trial court in toto, the CA held that the grant of the quarry
license covering 330.3062 hectares to respondents was authorized by law,
because the license was embraced by four (4) separate applications -- each
for an area of 81 hectares. Moreover, it held that the limitation under
Presidential Decree No. 463 -- that a quarry license should cover not more
than 100 hectares in any given province -- was supplanted by Republic Act
No. 7942,[7] which increased the mining areas allowed under PD 463.
It also ruled that the cancellation of respondents license without notice
and hearing was tantamount to a deprivation of property without due
process of law. It added that under the clause in the Constitution dealing
with the non-impairment of obligations and contracts, respondents license
must be respected by the State.
Hence, this Petition.[8]
Issues
Petitioners submit the following issues for the Courts consideration:
(1) [W]hether or not QLP No. 33 was issued in blatant contravention of
Section 69, P.D. No. 463; and (2) whether or not Proclamation No. 84 issued
SECTION 5.
Mineral Reservations. When the national interest so
requires, such as when there is a need to preserve strategic raw materials
for industries critical to national development, or certain minerals for
scientific, cultural or ecological value, the President may establish mineral
reservations upon the recommendation of the Director through the
Secretary. Mining operations in existing mineral reservations and such other
reservations as may thereafter be established, shall be undertaken by the
Department or through a contractor: Provided, That a small scale-mining
cooperative covered by Republic Act No. 7076 shall be given preferential
right to apply for a small-scale mining agreement for a maximum aggregate
area of twenty-five percent (25%) of such mineral reservation, subject to
valid existing mining/quarrying rights as provided under Section 112 Chapter
XX hereof. All submerged lands within the contiguous zone and in the
exclusive economic zone of the Philippines are hereby declared to be
mineral reservations.
x x x
xxx
xxx
SECTION 7.
Periodic Review of Existing Mineral Reservations.
The Secretary shall periodically review existing mineral reservations for the
purpose of determining whether their continued existence is consistent with
the national interest, and upon his recommendation, the President may, by
proclamation, alter or modify the boundaries thereof or revert the same to
the public domain without prejudice to prior existing rights.
SECTION 18.
Areas Open to Mining Operations. Subject to any
existing rights or reservations and prior agreements of all parties, all mineral
resources in public or private lands, including timber or forestlands as
defined in existing laws, shall be open to mineral agreements or financial or
technical assistance agreement applications. Any conflict that may arise
under this provision shall be heard and resolved by the panel of arbitrators.
SECTION 19.
Areas Closed to Mining Applications. -- Mineral
agreement or financial or technical assistance agreement applications shall
not be allowed:
(a)
In military and other government reservations, except upon prior
written clearance by the government agency concerned;
(b)
Near or under public or private buildings, cemeteries, archeological
and historic sites, bridges, highways, waterways, railroads, reservoirs, dams
or other infrastructure projects, public or private works including plantations
or valuable crops, except upon written consent of the government agency or
private entity concerned;
(c)
(d)
(e)
In areas covered by small-scale miners as defined by law unless
with prior consent of the small-scale miners, in which case a royalty payment
upon the utilization of minerals shall be agreed upon by the parties, said
royalty forming a trust fund for the socioeconomic development of the
community concerned; and
(f)
Old growth or virgin forests, proclaimed watershed forest reserves,
wilderness areas, mangrove forests, mossy forests, national parks,
provincial/municipal forests, parks, greenbelts, game refuge and bird
sanctuaries as defined by law and in areas expressly prohibited under the
National Integrated Protected Areas System (NIPAS) under Republic Act No.
7586, Department Administrative Order No. 25, series of 1992 and other
laws.
SECTION 112.
Non-impairment of Existing Mining/ Quarrying Rights.
All valid and existing mining lease contracts, permits/licenses, leases
pending renewal, mineral production-sharing agreements granted under
Executive Order No. 279, at the date of effectivity of this Act, shall remain
valid, shall not be impaired, and shall be recognized by the Government:
Provided, That the provisions of Chapter XIV on government share in
mineral production-sharing agreement and of Chapter XVI on incentives of
this Act shall immediately govern and apply to a mining lessee or contractor
unless the mining lessee or contractor indicates his intention to the
provisions of Presidential Decree No. 463, as amended, and the rules and
regulations promulgated thereunder, as well as with the terms and
conditions specified herein; Provided, That if a permit/license is cancelled, or
otherwise terminated, the permittee/licensee shall be liable for all unpaid
rentals and royalties due up to the time of the termination or cancellation of
the permit/license[.][30] (Italics supplied)
The determination of what is in the public interest is necessarily vested
in the State as owner of all mineral resources. That determination was
based on policy considerations formally enunciated in the letter dated
September 15, 1986, issued by then Minister Maceda and, subsequently, by
the President through Proclamation No. 84. As to the exercise of
prerogative by Maceda, suffice it to say that while the cancellation or
revocation of the license is vested in the director of mines and geo-sciences,
the latter is subject to the formers control as the department head. We also
stress the clear prerogative of the Executive Department in the evaluation
and the consequent cancellation of licenses in the process of its formulation
of policies with regard to their utilization. Courts will not interfere with the
exercise of that discretion without any clear showing of grave abuse of
discretion.[31]
Moreover, granting that respondents license is valid, it can still be
validly revoked by the State in the exercise of police power.[32] The exercise
of such power through Proclamation No. 84 is clearly in accord with jura
regalia, which reserves to the State ownership of all natural resources.
[33]
This Regalian doctrine is an exercise of its sovereign power as owner of
lands of the public domain and of the patrimony of the nation, the mineral
deposits of which are a valuable asset.[34]
Proclamation No. 84 cannot be stigmatized as a violation of the nonimpairment clause. As pointed out earlier, respondents license is not a
contract to which the protection accorded by the non-impairment clause may
extend.[35] Even if the license were, it is settled that provisions of existing
laws and a reservation of police power are deemed read into it, because it
concerns a subject impressed with public welfare.[36] As it is, the nonimpairment clause must yield to the police power of the state. [37]
SO ORDERED. 1
Petitioner appealed the decision to the Court of Appeals which docketed it
as C.A.-G.R. No. 00479-R; he urged said court to reverse it because the
agrarian court gravely erred in: (a) ordering his ejectment, completely
denying the fact that private respondent, due to his sickness, is physically
incapable of personally cultivating the subject landholding and that private
respondent filed the complaint out of vindictiveness, and (b) in dismissing
the counterclaim for redemption, contrary to the facts and law. 2
On 16 December 1972, the Court of Appeals promulgated its decision 3 in
C.A.-G.R. No. 00479-R affirming the decision of the agrarian court. In
disposing of the assigned errors, said Court ruled that private respondent
complied with the requirement of notice of at least one (1) agricultural year.
And although private respondent was already 69 years old at the time he
testified, there is nothing on record to indicate that he is suffering from any
physical ailment; besides, in this age of advanced technology, most of the
back-breaking processes of farming have been lightened by machinery. As
regards the asserted right of redemption pursuant to Section 11 of R.A. No.
3844, the Court held that the petitioner "failed to comply with the
requirements" and took note of petitioner's petition before the lower court to
litigate as pauper as "a circumstance that is highly indicative of lack of funds
on his part." 4 His motion to reconsider 5 the decision having been denied in
the resolution of 25 January 1973, 6 petitioner took the instant recourse to
present the following legal issues for this Court's resolution:
1. What is the effect of Section 7 of R.A. No. 6389,
abolishing personal cultivation by landowners as a ground
for dispossession of tenants from their landholdings, on
pending appealed cases?
2. Should pending appealed cases on personal cultivation
be decided in the light of Section 7 of R.A. No. 6389?
Expectedly, petitioner maintains that this case should have been decided in
the light of Section 7 of R.A. No. 6389 since, in view of the appeal, the
private respondent did not yet acquire a vested right to personally cultivate
the landholding. In short, the application of the repealing law warrants the
dismissal of the action for ejectment.
Republic Act No. 6389 took effect on 10 September 1971, during the
pendency of this case before the Court of Appeals.
After private respondent filed his comment 7 in compliance with the
resolution of 13 March 1973, this Court resolved to give due course to the
petition 8 and thereafter required the petitioner to file his Brief, 9 which he
complied with on 22 June 1973;10 he makes the following assignment of
errors:
I
The Court a quo gravely erred in ordering the ejectment of
herein petitioner on the ground of personal cultivation.
II
The Honorable Court of Appeals erred in not dismissing
private respondent's complaint for cultivation in view of the
repeal of Section 36(1) Rep. Act 3844 by Section 7 of Rep.
Act 6389.
Private respondent filed his Brief on 25 September 1973.
In support of the first assigned error, petitioner asserts that during the
pendency of the appeal in the Court of Appeals, Congress passed Republic
Act No. 6389, Section 7 of which amended Section 36(1) of R.A. No. 3844.
As amended, personal cultivation is no longer a ground to dispossess an
agricultural lessee of his landholding. Section 36(1) of R.A. No. 3844
originally read as follows:
Sec. 36. Possession of Landholding; Exceptions.
Notwithstanding any agreement as to the period or future
surrender of the land, an agricultural lessee shall continue in
the enjoyment and possession of his landholding except
Article 3 of the old Civil Code (now Article 4 of the New Civil
Code) provides that: "Laws shall not have a retroactive
effect unless therein otherwise provided." According to this
provision of law, in order that a law may have retroactive
effect it is necessary that an express provision to this effect
be made in the law, otherwise nothing should be understood
which is not embodied in the law. Furthermore, it must be
borne in mind that a law is a rule established to guide our
actions with no binding effect until it is enacted, wherefore, it
has no application to past times but only to future time, and
that is why it is said that the law looks to the future only and
has no retroactive effect unless the legislator may have
formally given that effect to some legal provisions (Lopez
and Lopez v. Crow, 40 Phil. 997).
As early as 1913, this Court with Justice Moreland
as ponente announced:
The Act contains, as is seen, no express
words giving it a retrospective or retroactive
effect, nor is there anything found therein
which indicates an intention to give it such
an effect. Its effect is, rather, by clear
intendment, prospective.
It is a rule of statutory construction that all
statutes are to construed as having only a
prospective operation unless the purpose
and intention of the Legislature to give them
a retrospective effect is expressly declared
or is necessarily implied from the language
used. In every case of doubt, the doubt
must be solved against the retrospective
effect. The cases supporting this rule are
almost without number. . . .
xxx xxx xxx
The doctrine of non-retroactivity was reiterated in the case
of Segovia v. Noel (47 Phil. 543.). Thus
EMDEN
ENCARNACION
AYCARDO, respondents.
and
HORATIO
DECISION
ROMERO, J.:
SECOND DIVISION
[G.R. No. 117188. August 7, 1997]
LOYOLA GRAND VILLAS HOMEOWNERS (SOUTH) ASSOCIATION,
INC., petitioner,
vs. HON.
COURT
OF
APPEALS,
HOME INSURANCE AND
GUARANTY
CORPORATION,
May the failure of a corporation to file its by-laws within one month from
the date of its incorporation, as mandated by Section 46 of the Corporation
Code, result in its automatic dissolution?
This is the issue raised in this petition for review on certiorari of the
Decision[1] of the Court of Appeals affirming the decision of the Home
Insurance and Guaranty Corporation (HIGC). This quasi-judicial body
recognized Loyola Grand Villas Homeowners Association (LGVHA) as the
sole homeowners association in Loyola Grand Villas, a duly registered
subdivision in Quezon City and Marikina City that was owned and developed
by Solid Homes, Inc. It revoked the certificates of registration issued to
Loyola Grand Villas Homeowners (North) Association Incorporated (the
North Association for brevity) and Loyola Grand Villas Homeowners (South)
Association Incorporated (the South Association).
LGVHAI was organized on February 8, 1983 as the association of
homeowners and residents of the Loyola Grand Villas. It was registered
with the Home Financing Corporation, the predecessor of herein respondent
HIGC, as the sole homeowners organization in the said subdivision under
Certificate of Registration No. 04-197. It was organized by the developer of
the subdivision and its first president was Victorio V. Soliven, himself the
owner of the developer. For unknown reasons, however, LGVHAI did not
file its corporate by-laws.
Sometime in 1988, the officers of the LGVHAI tried to register its bylaws. They failed to do so.[2] To the officers consternation, they discovered
that there were two other organizations within the subdivision the North
Association and the South Association. According to private respondents, a
non-resident and Soliven himself, respectively headed these
associations. They also discovered that these associations had five (5)
registered homeowners each who were also the incorporators, directors and
officers thereof. None of the members of the LGVHAI was listed as member
of the North Association while three (3) members of LGVHAI were listed as
members of the South Association. [3] The North Association was registered
with the HIGC on February 13, 1989 under Certificate of Registration No.
04-1160 covering Phases West II, East III, West III and East IV. It submitted
its by-laws on December 20, 1988.
In July, 1989, when Soliven inquired about the status of LGVHAI, Atty.
Joaquin A. Bautista, the head of the legal department of the HIGC, informed
him that LGVHAI had been automatically dissolved for two reasons. First, it
did not submit its by-laws within the period required by the Corporation Code
and, second, there was non-user of corporate charter because HIGC had
not received any report on the associations activities. Apparently, this
information resulted in the registration of the South Association with the
HIGC on July 27, 1989 covering Phases West I, East I and East 11. It filed
its by-laws on July 26, 1989.
These developments prompted the officers of the LGVHAI to lodge a
complaint with the HIGC. They questioned the revocation of LGVHAIs
certificate of registration without due notice and hearing and concomitantly
prayed for the cancellation of the certificates of registration of the North and
South Associations by reason of the earlier issuance of a certificate of
registration in favor of LGVHAI.
On January 26, 1993, after due notice and hearing, private respondents
obtained a favorable ruling from HIGC Hearing Officer Danilo C. Javier who
disposed of HIGC Case No. RRM-5-89 as follows:
WHEREFORE, judgment is hereby rendered recognizing the Loyola Grand
Villas Homeowners Association, Inc., under Certificate of Registration No.
04-197 as the duly registered and existing homeowners association for
Loyola Grand Villas homeowners, and declaring the Certificates of
Registration of Loyola Grand Villas Homeowners (North) Association, Inc.
and Loyola Grand Villas Homeowners (South) Association, Inc. as hereby
revoked or cancelled; that the receivership be terminated and the Receiver
is hereby ordered to render an accounting and turn-over to Loyola Grand
Villas Homeowners Association, Inc., all assets and records of the
Association now under his custody and possession.
The South Association appealed to the Appeals Board of the HIGC. In
its Resolution of September 8, 1993, the Board [4] dismissed the appeal for
lack of merit.
1979, transferred the powers and authorities of the SEC over homeowners
associations to the HIGC.)
We also do not agree with the petitioners interpretation that Section 46,
Corporation Code prevails over Section 6, P.D. 902-A and that the latter is
invalid because it contravenes the former. There is no basis for such
interpretation considering that these two provisions are not inconsistent with
each other. They are, in fact, complementary to each other so that one
cannot be considered as invalidating the other.
The Court of Appeals added that, as there was no showing that the
registration of LGVHAI had been validly revoked, it continued to be the duly
registered homeowners association in the Loyola Grand Villas. More
importantly, the South Association did not dispute the fact that LGVHAI had
been organized and that, thereafter, it transacted business within the period
prescribed by law.
On the second issue, the Court of Appeals reiterated its previous
ruling[5] that the HIGC has the authority to order the holding of a referendum
to determine which of two contending associations should represent the
entire community, village or subdivision.
Undaunted, the South Association filed the instant petition for review
on certiorari. It elevates as sole issue for resolution the first issue it had
raised before the Court of Appeals, i.e., whether or not the LGVHAIs failure
to file its by-laws within the period prescribed by Section 46 of the
Corporation Code had the effect of automatically dissolving the said
corporation.
Petitioner contends that, since Section 46 uses the word must with
respect to the filing of by-laws, noncompliance therewith would result in
self-extinction either due to non-occurrence of a suspensive condition or
the occurrence of a resolutory condition under the hypothesis that (by) the
issuance of the certificate of registration alone the corporate personality is
deemed already formed. It asserts that the Corporation Code provides for a
gradation of violations of requirements. Hence, Section 22 mandates that
the corporation must be formally organized and should commence
transactions within two years from date of incorporation. Otherwise, the
corporation would be deemed dissolved. On the other hand, if the
x x x the word MUST is used in Sec. 46 in its universal literal meaning and
corollary human implication its compulsion is integrated in its very essence
MUST is always enforceable by the inevitable consequence that is, OR
ELSE. The use of the word MUST in Sec. 46 is no exception it means file
the by-laws within one month after notice of issuance of certificate of
registration OR ELSE. The OR ELSE, though not specified, is inextricably a
part of MUST. Do this or if you do not you are Kaput. The importance of
the by-laws to corporate existence compels such meaning for as decreed
the by-laws is `the government of the corporation. Indeed, how can the
corporation do any lawful act as such without by-laws. Surely, no law is
intended to create chaos.[7]
Petitioner asserts that P.D. No. 902-A cannot exceed the scope and
power of the Corporation Code which itself does not provide sanctions for
non-filing of by-laws. For the petitioner, it is not proper to assess the true
meaning of Sec. 46 x x x on an unauthorized provision on such matter
contained in the said decree.
In their comment on the petition, private respondents counter that the
requirement of adoption of by-laws is not mandatory. They point to P.D. No.
902-A as having resolved the issue of whether said requirement is
deliberations of the Batasang Pambansa, the law itself provides the answer
to the issue propounded by petitioner.
Taken as a whole and under the principle that the best interpreter of a
statute is the statute itself (optima statuli interpretatix est ipsum
statutum),[14] Section 46 aforequoted reveals the legislative intent to attach
a directory, and not mandatory, meaning for the word must in the first
sentence thereof. Note should be taken of the second paragraph of the law
which allows the filing of the by-laws even prior to incorporation. This
provision in the same section of the Code rules out mandatory compliance
with the requirement of filing the by-laws within one (1) month after receipt
of official notice of the issuance of its certificate of incorporation by the
Securities and Exchange Commission. It necessarily follows that failure to
file the by-laws within that period does not imply the demise of the
corporation. By-laws may be necessary for the government of the
corporation but these are subordinate to the articles of incorporation as well
as to the Corporation Code and related statutes. [15] There are in fact cases
where by-laws are unnecessary to corporate existence or to the valid
exercise of corporate powers, thus:
In the absence of charter or statutory provisions to the contrary, by-laws
are not necessary either to the existence of a corporation or to the valid
exercise of the powers conferred upon it, certainly in all cases where the
charter sufficiently provides for the government of the body; and even where
the governing statute in express terms confers upon the corporation the
power to adopt by-laws, the failure to exercise the power will be
ascribed to mere nonaction which will not render void any acts of the
corporation which would otherwise be valid.[16] (Italics supplied.)
As Fletcher aptly puts it:
It has been said that the by-laws of a corporation are the rule of its life, and
that until by-laws have been adopted the corporation may not be able to act
for the purposes of its creation, and that the first and most important duty of
the members is to adopt them. This would seem to follow as a matter of
principle from the office and functions of by-laws. Viewed in this light, the
adoption of by-laws is a matter of practical, if not one of legal, necessity.
Moreover, the peculiar circumstances attending the formation of a
corporation may impose the obligation to adopt certain by-laws, as in the
case of a close corporation organized for specific purposes. And the statute
or general laws from which the corporation derives its corporate existence
may expressly require it to make and adopt by-laws and specify to some
extent what they shall contain and the manner of their adoption. The mere
fact, however, of the existence of power in the corporation to adopt bylaws does not ordinarily and of necessity make the exercise of such
power essential to its corporate life, or to the validity of any of its
acts.[17]
Although the Corporation Code requires the filing of by-laws, it does not
expressly provide for the consequences of the non-filing of the same within
the period provided for in Section 46. However, such omission has been
rectified by Presidential Decree No. 902-A, the pertinent provisions on the
jurisdiction of the SEC of which state:
SEC. 6. In order to effectively exercise such jurisdiction, the Commission
shall possess the following powers:
xxx xxx
xxx
xxx
xxx
xxx
xxx
xxx
The aggrieved party may appeal the order, decision or ruling of the
Commission sitting en banc to the Supreme Court by petition for review in
accordance with the pertinent provisions of the Rules of Court.
Even under the foregoing express grant of power and authority, there
can be no automatic corporate dissolution simply because the incorporators
failed to abide by the required filing of by-laws embodied in Section 46 of the
Corporation Code. There is no outright demise of corporate
existence. Proper notice and hearing are cardinal components of due
process in any democratic institution, agency or society. In other words, the
incorporators must be given the chance to explain their neglect or omission
and remedy the same.
That the failure to file by-laws is not provided for by the Corporation
Code but in another law is of no moment. P.D. No. 902-A, which took effect
immediately after its promulgation on March 11, 1976, is very much apposite
to the Code. Accordingly, the provisions abovequoted supply the law
governing the situation in the case at bar, inasmuch as the Corporation
Code and P.D. No. 902-A are statutes in pari materia. Interpretare et
concordare legibus est optimus interpretandi. Every statute must be so
construed and harmonized with other statutes as to form a uniform system
of jurisprudence.[18]
As the rules and regulations or private laws enacted by the corporation
to regulate, govern and control its own actions, affairs and concerns and its
stockholders or members and directors and officers with relation thereto and
among themselves in their relation to it, [19] by-laws are indispensable to
corporations in this jurisdiction. These may not be essential to corporate
birth but certainly, these are required by law for an orderly governance and
management of corporations. Nonetheless, failure to file them within the
period required by law by no means tolls the automatic dissolution of a
corporation.
In this regard, private respondents are correct in relying on the
pronouncements of this Court in Chung Ka Bio v. Intermediate Appellate
Court,[20] as follows:
x x x. Moreover, failure to file the by-laws does not automatically operate
to dissolve a corporation but is now considered only a ground for such
dissolution.
which they also indicated their belief that, by reason of said death, their
authority as such counsel was terminated.
CASTRO, J.:
In the election case, meanwhile, the protestant Argana moved for the
constitution of committees on revision of ballots. Expressly to hear
protestee's view thereon and to afford him a chance to propose his
commissioners, this motion was set for hearing but, quite understandably, no
appearance was entered for the deceased protestee. Accordingly, on May 6,
1964, the court a quo required the protestee's widow and children to appear
within fifteen days from notice in order to be substituted for said protestee, if
they so desired. They did not, however, comply. Taking no further action in
the premises, the trial court left the matter at that.
In this petition for certiorari with preliminary injunction, the petitioners ask
this Court to review a three-to-two decision rendered by a special division of
the Court of Appeals on March 26, 1965 in C.A. 35019-R, sustaining the
validity of the proceedings had and taken by the Court of First Instance of
Rizal in election case 7924 before it (Maximino A. Argana, protestant vs.
Francisco De Mesa, protestee). The issue of nullity of the judgment
promulgated in the said election case was elevated to the Court of Appeals
on a petition for certiorari and mandamus, upon the contention that the said
court of first instance illegally and incorrectly did not allow the substitution of
the present petitioners as parties for De Mesa, after the latter's death, and
thereafter denied due course to their appeal from the said judgment.
The antecedent facts are not complicated.
Opponents for the mayoralty of Muntinlupa, Rizal in the 1963 elections were
Francisco De Mesa and Maximino A. Argana. The electorate's choice, as
tallied by the local board of canvassers, was De Mesa. Elected vice-mayor
with him was Demetrio R. Loresca. Duly, proclaimed elected, these two
qualified and assumed their respective positions upon the commencement
of their term of office.
Meanwhile and in due season, defeated candidate Argana, charging the
perpetration of frauds, terrorism and other irregularities in certain precincts,
protested the election of De Mesa, which protest was docketed as election
case 7924,supra, in the Court of First Instance of Rizal, the Honorable
Eulogio Mencias presiding. In his return to the protest, De Mesa traversed
the charges, and, in a counter-protest incorporated therein, sought to shift
responsibility for irregularities to the protestant and his followers, impugning
in view thereof the results in some thirteen precincts.
On March 18, 1964, however, an assassin's bullet felled De Mesa, and,
forthwith, vice-mayor Loresca was, by operation of law, duly installed as his
successor. Notice of De Mesa's demise was given on April 22, 1964 to the
court a quo thru a "Constancia" filed by the decedent's counsel of record, in
appeal from the decision in said case. Upon bond duly filed and approved,
the Court of Appeals issued the writ of preliminary injunction prayed for.
However, upon respondents' motion and over the opposition of the
petitioners, the effect of said writ was temporarily suspended until the case
was finally decided by the Court of Appeals.
On September 25, 1964 the court a quo, subscribing to the position taken by
the protestant, denied the movants' petition for leave to represent the
deceased protestee, and order stricken from the record their motion for
reconsideration and new trial and their cautionary notice of appeal.
Appropriate proceedings having been had in the case, the latter court,
besides finding the inapplicability to election cases of the provisions of
Section 17, Rule 3 of the Rules of Court on substitution of parties in case of
death, opined that the petitioners likewise lacked the legal standing and/or
capacity to appear in election case 7924 aforesaid and/or to appeal from the
decision rendered therein, and that furthermore while the petitioner Loresca
may have had such personality he nevertheless failed to timely invoke the
same to protect his interests. Accordingly, it denied the petition
for certiorari andmandamus and consequently permanently dissolved the
writ of preliminary injunction theretofore issued.
The vital issue, to which all other issues appear to be subsidiary, is the
determination of the legal effect of the proceedings taken by the trial court in
the election contest before it subsequent to the demise of the protestee De
Mesa.
Pleading lack of personality both of De Mesa's widow and the local Liberal
Party Chapter to intervene in the case, as well as the absence of any ground
for a new trial, the protestant opposed the foregoing moves. To the
opposition, the movant below filed their reply.
not only does notipso facto divest him of the character of an adversary in the
contest inasmuch as he retains a party interest to keep his political opponent
out of the office and maintain therein his successor, but also does not in any
manner impair or detract from the jurisdiction of the court to pursue the
proceeding to its final conclusion (De Los Angeles vs. Rodriguez, 46 Phil.
595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs. Maramba,
G.R. L-13206).
the premises and, instead, at the instance of the protestant, declared said
widow and children non-suited, proceeded with the case ex parte, and
effectively blocked all attempts at intervention and/or substitution in behalf of
the deceased protestee. In these moves, the trial court did not only merit the
unqualified sanction of the Court of Appeals but the latter, taking an even
more radical of the matter, actually held that the rule relied upon has no
application to election cases.
Upon the same principle, the death of the protestee De Mesa did not abate
the proceedings in the election protest filed against him, and it may be
stated as a rule that an election contest survives and must be prosecuted to
final judgment despite the death of the protestee.
and defeat the popular will. Judicial experience teaches that more often than
not frauds and irregularities committed during the voting come to light only
when the ballot boxes are opened and their contents examined. At no time
then in the course of an election contest is the need for vigilance more to be
insisted upon than during that critical stage when the ballot boxes are
opened and the ballots themselves are revised. To deny a party to the
contest the representation that the law allows him at this juncture is virtually
to take away one of the most effective measures designed for the
approximation of the primordial objective election laws are intended to
achieve.
In the light of the foregoing, it is our considered view that Section 17, Rule 3
of the Rules of Court applies to election contests to the same extent and
with the same force and effect as it does in ordinary civil actions. And we
declare that unless and until the procedure therein detailed is strictly
adhered to, proceedings taken by a court in the absence of a duly appointed
legal representative of the deceased protestee must be stricken down as
null and void. Considering that, in the case at bar, the trial court failed to
order the protestant to procure the appointment of a legal representative of
the deceased protestee after the latter's widow and children had failed to
comply with the court order requiring their appearance to be substituted in
lieu of their predecessor, but instead in derogation of the precepts of the
Rule in question and in the total absence of a legal representative of the
deceased protestee proceeded ex parte with the election case, said court
not only acted with grave abuse of discretion but actually committed a clear
extra-limitation of its lawful jurisdiction which, perforce, tainted all its
proceedings with the indelible stigma of nullity (Barrameda, et al. vs.
Barbara, 90 Phil. 718, 722, 723; Ferreria vs. Ibarra Vda. de Gonzales, et al.,
55 O.G. No. 8, 1358, 136263; Sarmiento, etc., et al. vs. Ortiz, et al., G.R. L18583, January 31, 1964; Caisip vs. Cabangon, G.R. L-14684-14686,
August 26, 1960).
It is no argument against this conclusion to contend that the requirement for
the procurement of a legal representative of a deceased litigant is couched
in the permissive term "may" instead of the mandatory word "shall." While
the ordinary acceptations of these terms may indeed be resorted to as
guides in the ascertainment of the mandatory or directory character of
statutory provisions, they are in no wise absolute and inflexible criteria in the
vast areas of law and equity. Depending upon a consideration of the entire
provision, its nature, its object and the consequences that would follow from
construing it one way or the other, the convertibility of said terms either as
mandatory or permissive is a standard recourse in statutory construction.
Thus, Black is authority for the rule that "Where the statute provides for the
doing of some act which is required by justice or public duty, or where it
invests a public body, municipality or public officer with power and authority
to take some action which concerns the public interest or rights of
individuals, the permissive language will be construed as mandatory and the
execution of the power may be insisted upon as a duty" (Black,
Interpretation of Laws, pp. 540-543). The matter here involved not only
concerns public interest but also goes into the jurisdiction of the trial court
and is of the essence of the proceedings taken thereon. On this point, there
is authority to the effect that in statutes relating to procedure, as is the one
now under consideration, every act which is jurisdictional, or of the essence
of the proceedings, or is prescribed for the protection or benefit of the party
affected, is mandatory (Gonzaga, Statutes and their Construction, p. 98,
citing: Estate of Naval, G.R. No. L-6736, May 4, 1954). The present case is
well within the purview of this doctrine.
Nor may the motu proprio appointment by the trial court of Ramon Antilon Jr.
as commissioner for the deceased protestee in the revision proceedings be
decreed a substantial compliance with the legal requirement. As aptly
observed in the dissent to the decision under review, said commissioner was
not the legal representative contemplated by the Rules to be substituted for
the deceased protestee. Said commissioner was not supposed to represent
the protestee as a party litigant. His appointment as such was made
exclusively upon the initiative of the trial court and is authorized by the law.
Section 175, Revised Election Code, merely as a time-saving device for the
convenience of the court and the parties in the purely mechanical operation
of opening the ballots and tabulating the count and in the interest of a
speedy and expeditious revision and recount of the contested ballots
(Hontiveros vs. Altavas, 24 Phil. 632, 649-650; Raymundo vs. Gonzales, 80
Phil. 719, 721). For all legal intents and purposes, while said commissioner's
appointment may be proposed by the contestants themselves, he is
nevertheless exclusively an officer or an agent of the court under its direct
control and supervision.
Equally unacceptable is the proposition that, because time is of the essence
in an election contest, recourse to the appointment of a legal representative
of a deceased protestee which can only protract and delay the progress of
the case is but a finical matter of procedure which can justifiably be
dispensed with. The validity of the injunction for the prompt disposal of
election controversies as repeatedly postulated in a consistent array of
jurisprudence is not open to debate. The terms of office of elective officials
are relatively brief. To dissipate within the shortest time possible any aura of
doubt upon the true result of elections is a much sought-after desideratum.
But, salutary though the precept may be, it is no justification for cutting
procedural corners or taking legal short cuts not warranted in a system of
procedure where the rule of law is still held paramount over and above all
considerations of mere convenience and expediency. We would be the last
to advocate a departure from the policy of early settlement of electoral
disputes, but we are not prepared to lend our approval to a course of action
which would tend to achieve one object of desire at the expense of the
orderly administration of justice and with the sacrifice of the fundamental
right of litigants to due process of law. Otherwise, the speedy trial required
by the law would be converted into a denial of justice (Querubin vs. Court of
Appeals, 82 Phil. 226, 230). In law as in any other sphere of human
relations the end very seldom, if at all, justifies the means. And, in the
case at bar, the admittedly imperative demand for a speedy disposition of
the controversy cannot deter our hand from striking down illegality in the
proceedings therein and remanding the case for new trial, despite the
concomitant delay that may be occasioned thereby, since that is the only
course open if the ends of justice are to be subserved (Salcedo vs.
Hernandez, 62 Phil. 584, 587).
The same cannot, however, be said of the protestee's widow or of the local
Liberal Party chapter of Muntinlupa. The protestee's claim to the contested
office is not in any sense a right transmissible to this widow or heirs. Said
widow's only remaining interest in the outcome of the case is limited to no
more than the possible award of costs against the deceased protestee.
Besides not being such an interest as would justify her substitution for her
deceased husband as an indispensable legal representative, the right to
such an award if eventually made has already been waived by the protestant
Argana. This effectively withdraws the widow from the picture altogether.
Much less has the local Liberal Party Chapter any claim to substitution. Not
being duly incorporated as a juridical person, it can have no personality to
sue or be sued as such. And while it conceivably may derive some indirect
benefit consequent to the resolution of the contest in favor of the deceased
protestee, neither the chapter itself nor the officers thereof would become
entitled thereby to any right to the contested office in case of a favorable
judgment, nor, for that matter, do they stand to sustain any direct prejudice in
As the record of the case reveals, three different aspirants vied for that legal
representation: Demetrio R. Loresca, the vice-mayor who succeeded to the
position of mayor upon the protestee's demise; Magdalena Sibulo Vda. de
De Mesa, the protestee's widow; and the local chapter of the Liberal Party at
Muntinlupa, Rizal, to which the deceased protestee belonged, as
represented by its officers who are co-petitioners herein. An examination of
the countervailing interests of these parties seems in order.
By virtue of Section 7 of the Local Autonomy Act, Republic Act 2264, the
vice-mayor stands next in line of succession to the mayor in case of a
permanent vacancy in the latter's position. Upon the death of the protestee
mayor in the case at bar, Loresca as then incumbent vice-mayor succeeded
Nos. 011980 and 011981, addressed to Marietta Ferrer of 9-E Mango Road,
Portero, Malabon, Rizal, the complaining witness, and Atty, Angel P.
Purisima of 414 Shurdut Bldg., Intramuros, Manila, counsel for the accused,
respectively, were posted in said office on December 4, 1975. These notices
were received by the respective addressees on December 8 and 9, 1975. 3
Similar notices were sent to the Provincial Fiscal of Pasig and to the
Provincial Warden of Pasig, Rizal, who both received them on December
2,1975, 4
On the date set for promulgation of the decision, counsel for accused moved
for postponement, raising for the first time the alleged loss of jurisdiction of
the trial court for failure to decide the case within 90 days from submission
thereof for decision. Acceding to counsel's request that he be given time to
consider the proper remedial measure to take, the respondent judge reset
the promulgation of the decision to January 19, 1976 at 8:30 A. M.
On January 19, 1976, counsel for petitioner moved anew for the resetting of
the promulgation of decision. Granting the motion, respondent judge
rescheduled the promulgation to January 26, 1976.
Meanwhile, on January 12, 1976, counsel for the accused filed before Us
the present petition. On January 16, 1976, this Court issued an Order
temporarily restraining respondent judge from promulgating the decision in
Criminal Case No, C-5910.
Petitioner espouses the thesis that the three-month period prescribed by
Section 11[l] of Article X of the 1973 Constitution, being a constitutional
directive, is mandatory in character and that non-observance thereof results
in the loss of jurisdiction of the court over the unresolved case.
We disagree. Undisputed is the fact that on November 28, 1975, or eightyfive [851 days from September 4, 1975 the date the case was deemed
submitted for decision, respondent judge filed with the deputy clerk of court
the decision in Criminal Case No. 5910. He had thus veritably rendered his
decision on said case within the three-month period prescribed by the
Constitution.
In Comia v. Nicolas, 5 Ago v. Court of Appeals 6 and Balquidra v. Court of
First Instance 7 this Court ruled that the rendition of the judgment in trial
courts refers to the filing of the signed decision with the clerk of court. There
is no doubt that the constitutional provision cited by petitioner refers to the
rendition of judgment and not to the promulgation thereof. Thus, it is this
date that should be considered in determining whether or not respondent
judge had resolved the case within the allotted period. Indeed, the date of
promulgation of a decision could not serve as the reckoning date because
the same necessarily comes at at a later date, considering that notices have
to be sent to the accused as well as to the other parties involved, an event
which is beyond the control of the judge. As pointed out in People v. Court of
Appeals 8, the promulgation of a judgment in the trial court does not
necessarily coincide with the date of its delivery by the judge of the clerk of
court.
Section 11 [1], Article X of the New Constitution provides in full, to wit:
SEC. 11 [1]. Upon the effectivity of this Constitution, the
maximum period within which a case or matter shall be
decided or resolved from the date of its submission, shall be
eighteen months for the Supreme court, and, unless
reduced by the Supreme Court, twelve months for all inferior
collegiate courts, and three months for all other inferior
courts.
To date, no authoritative interpretation of the above-quoted provision has
been rendered by this Court. Thus, in approaching this novel question, We
now tread upon what Mr. Cooley characterizes as "very dangerous ground
when they [referring to the courts] venture to apply rules which distinguish
directory and mandatory statutes to the provisions of a constitution." 9
The established rule is that "constitutional provisions are to be construed as
mandatory, unless by express provision or by necessary implication, a
different intention is manifest." 10 "The difference between a mandatory and
a directory provision is often determined on grounds of expediency, the
reason being that less injury results to the general public by disregarding
than by enforcing the letter of the law." 11
In Trapp v. McCormick, 12 a case calling for the interpretation of a statute
containing a limitation of thirty [30] days within which a decree may be
entered without the consent of counsel, it was held that "the statutory
provisions which may be thus departed from with impunity, without affecting
the validity of statutory proceedings, are usually those which relate to the
mode or time of doing that which is essential to effect the aim and purpose
of the Legislature or some incident of the essential act. " Thus, in said case,
the statute under examination was construed merely to be directory.
On this view, authorities are one in saying that:
Statutes requiring the rendition of judgment forthwith or
immediately after the trial or verdict have been held by
some courts to be merely directory so that non-compliance
with them does not invalidate the judgment, on the theory
that if the statute had intended such result it would clearly
have indicated it." [American Tupe Founders Co. v. Justice's
Court, 133 Cal. 819, 65 Pac. 742; Heillen v. Phillips, 88 Cal.
557, 26 Pac. 366; Drake v. Bagley, 69 Mo. App. 39, State v.
Davis, 194 Mo. 585, 5 Ann. Cas. 1000, 4 L.R.A. (N.S.) 1023,
92 S.W. 484; Wissman v. Meagher, 115 Mo. App. 82, 91
S.W. 448; Pohle v. Dickmann, 67 Mo. App. 381; Herwick v.
Koken Barber Supply Co., 61 Mo. App. 454].
Such construction applies equally to the constitutional provision under
consideration. In Mikell v. School Dis. of Philadelphia, 13 it was ruled that "the
legal distinction between directory and mandatory laws is applicable to
fundamental as it is to statutory laws."
To Our mind, the phraseology of the provision in question indicates that it
falls within the exception rather than the general rule. By the phrase "unless
reduced by the Supreme Court," it is evident that the period prescribed
therein is subject to modification by this Court in accordance with its
prerogative under Section 5[5] of Article X of the New Constitution to
"promulgate rules concerning pleading, practice and procedure in all
courts ... " And there can be no doubt that said provision, having been
incorporated for reasons of expediency, relates merely to matters of
procedure. Albermarle Oil & Gas Co. v. Morris, 14 declares that constitutional
provisions are directory, and not mandatory, where they refer to matters
merely procedural.
In practice, We have assumed a liberal stand with respect to this provision.
This Court had at various times, upon proper application and for meritorious
reasons, allowed judges of inferior courts additional time beyond the three-
month period within which to decide cases submitted to them. The reason is
that a departure from said provision would result in less injury to the general
public than would its strict application. To hold that non-compliance by the
courts with the aforesaid provision would result in loss of jurisdiction, would
make the courts, through which conflicts are resolved, the very instruments
to foster unresolved causes by reason merely of having failed to render a
decision within the alloted term. Such an absurd situation could not have
been intended by the framers of our fundamental law.
As foreseen by Mr. Henry Campbell Black in his Construction and
Interpretation of the Laws, 15 the constitutional provision in question should
be held merely as directory. "Thus, where the contrary construction) would
lead to absurd, impossible or mischievous consequences, it should not be
followed. "
One last point, Notwithstanding Our conclusion that courts are not divested
of their jurisdiction for failure to decide a case within the ninety-day period,
We here emphasize the rule, for the guidance of the judges manning our
courts, that cases pending before their salas must be decided within the
aforementioned period. Failure to observe said rule constitutes a ground for
administrative sanction against the defaulting judge. In fact a certificate to
this certificate is required before judges are allowed Lo draw their salaries.
WHEREFORE, the petition is hereby dismissed; and the Restraining Order
dated January 16, 1976 issued by this Court is lifted. Since respondent
Judge Fernando Cruz, Jr. is already deceased, his successor is hereby
ordered to decide Criminal Case No. C-5910 on the basis of the record
thereof within ninety [90] days from the time the case is raffled to him.
SO ORDERED.
Makasiar (Chairman), Concepcion Jr., Guerrero and De Castro, JJ., concur.
Aquino, J., is on leave.
Separate Opinions
case within 90 days from the date of its submission. Section 11(1), Art. X of
the Constitution is invoked.
The main opinion states that the 90-day period was not exceeded in this
case and I agree. But exceeded or not, a decision rendered by an inferior
court outside of the 90-day period is not void for loss of jurisdiction. To hold
otherwise is to make the administration of justice depend heavily on the
frailities of a human judge. A decision rendered beyond the 90-day period, I
submit, is valid and the only consequence is to subject the erring judge to
administrative action. "... failure to comply with the injunction for judges to
decide their cases within 90 days from submission merely deprives them of
their right to collect their salaries or to apply for leave (section 5, Judiciary
Act of 1948; section 129, Revised Administrative Code) but does not deprive
them of jurisdiction to act in the causes pending before them." (Dimson vs.
Elepao, 99 Phil. 733, 737 ,1956].)
The judge who wrote the questioned decision has died. It cannot now be
promulgated. "It is well-settled that, to be binding, a judgment must be duly
signed and promulgated during the incumbency of the judge whose
signature appears thereon." (People vs. So, July 30, 1957, No. L-8732,
citing Lino Luna v. Rodriguez, 37 Phil. 186; Garchitorena v. Crescini, 37 Phil.
675; Barredo v. The Commission on Elections, 45 Off. Gaz. 4457; People v.
Court of Appeals, G.R. No. L-9111-9113.) For this reason, petitioner's case
has to be declared by another judge.
VOL. 236, SEPTEMBER 1, 1994
197
Centeno vs. Villalon-Pornillos
G.R. No. 113092. September 1, 1994.*
Separate Opinions
ABAD SANTOS, J., concurring:
I concur and I wish to add the following observations:
The petitioner sinks release from detention on the ground of loss of
jurisdiction of the trial court allegedly because its judge failed to decide his
MARTIN CENTENO, petitioner, vs. HON. VICTORIA VILLALONPORNILLOS, Presiding Judge of the Regional Trial Court of Malolos,
Bulacan, Branch 10, and THE PEOPLE OF THE PHILIPPINES,
respondents.
Constitutional Law; Statutory Construction; Solicitation Permit Law; It is an
elementary rule of statutory construction that the express mention of one
person, thing, act, or consequence excludes all others.Indeed, it is an
elementary rule of statutory construction that the express mention of one
* SECOND DIVISION.
198
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SUPREME COURT REPORTS ANNOTATED
Centeno vs. Villalon-Pornillos
coverage.That these legislative enactments specifically spelled out
charitable and religious in an enumeration, whereas Presidential Decree
No. 1564 merely stated charitable or public welfare purposes, only goes to
show that the framers of the law in question never intended to include
solicitations for religious purposes within its coverage. Otherwise, there is no
reason why it would not have so stated expressly.
Same; Same; Same; The term charitable should be strictly construed so as
to exclude solicitation for religious purposes.On the other hand, to
subsume the religious purpose of the solicitation within the concept of
charitable purpose which under Presidential Decree No. 1564 requires a
prior permit from the Department of Social Services and Development,
under pain of penal liability in the absence thereof, would be prejudicial to
petitioner. Accordingly, the term charitable should be strictly construed so
as to exclude solicitations for religious purposes. Thereby, we adhere to
the fundamental doctrine underlying virtually all penal legislations that such
interpretation should be adopted as would favor the accused.
Same; Same; Same; It is a well-entrenched rule that penal laws are to be
construed strictly against the State and liberally in favor of the accused.
For, it is a well-entrenched rule that penal laws are to be construed strictly
against the State and liberally in favor of the accused. They are not to be
extended or enlarged by implications, intendments, analogies or equitable
considerations. They are not to be strained by construction to spell out a
new offense, enlarge the field of crime or multiply felonies.
Same; Same; Same; Charitable and religious, which are integral parts of
an enumeration using the disjunctive OR should be given different, distinct,
and disparate meanings.Furthermore, in the provisions of the Constitution
and the statutes mentioned above, the enu-merations therein given which
include the words charitable and reli-gious make use of the disjunctive
or. In its elementary sense, or as used in a statute is a disjunctive article
indicating an alternative. It often connects a series of words or propositions
indicating a choice of either. When or is used, the various members of the
enumeration are to be taken separately. Accordingly, charitable and
religious, which are integral parts of an enumeration using the disjunctive
or should be given different, distinct, and disparate meanings. There is no
compelling consideration why the same treatment or usage of these words
cannot be made applicable to the questioned provisions of Presidential
Decree No. 1564.
199
200
The facts are stated in the opinion of the Court.
200
SUPREME COURT REPORTS ANNOTATED
On December 29, 1992, the said trial court rendered judgment4 finding
accused Vicente Yco and petitioner Centeno guilty beyond reasonable doubt
and sentencing them to each pay a fine of P200.00. Nevertheless, the trial
court recommended that the accused be pardoned on the basis of its finding
that they acted in good faith, plus the fact that it believed that the latter
should not have been criminally liable were it not for the existence of
Presidential Decree No. 1564 which the court opined it had the duty to apply
in the instant case.
Both accused Centeno and Yco appealed to the Regional Trial Court of
Malolos, Bulacan, Branch 10. However, accused Yco
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201
Centeno vs. Villalon-Pornillos
without the required permit from the Department of Social Welfare and
Development.
The records of this case reveal that sometime in the last quarter of 1985, the
officers of a civic organization known as the Samahang Katandaan ng
Nayon ng Tikay launched a fund drive for the purpose of renovating the
chapel of Barrio Tikay, Malolos, Bulacan. Petitioner Martin Centeno, the
chairman of the group, together with Vicente Yco, approached Judge
Adoracion G. Angeles, a resident of Tikay, and solicited from her a
contribution of P1,500.00. It is admitted that the solicitation was made
without a permit from the Department of Social Welfare and Development.
As a consequence, based on the complaint of Judge Angeles, an
information1 was filed against petitioner Martin Centeno, together with
Religio Evaristo and Vicente Yco, for violation of Presidential Decree No.
1564, or the Solicitation Permit Law, before the Municipal Trial Court of
Malolos, Bulacan, Branch 2, and docketed as Criminal Case No. 2602.
Petitioner filed a motion to quash the information2 on the ground that the
facts alleged therein do not constitute an offense, claiming that Presidential
Decree No. 1564 only covers solicitations made for charitable or public
welfare purposes, but not those made for a religious purpose such as the
construction of a chapel. This was denied3 by the trial court, and petitioners
motion for reconsideration having met the same fate, trial on the merits
ensued.
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SUPREME COURT REPORTS ANNOTATED
Centeno vs. Villalon-Pornillos
subsequently withdrew his appeal, hence the case proceeded only with
respect to petitioner Centeno. On May 21, 1993, respondent Judge VillalonPornillos affirmed the decision of the lower court but modified the penalty,
allegedly because of the perversity of the act committed which caused
damage and prejudice to the complainant, by sentencing petitioner Centeno
to suffer an increased penalty of imprisonment of 6 months and a fine of
P1,000.00, without subsidiary imprisonment in case of insolvency.5 The
motion for reconsideration of the decision was denied by the court.6
Presidential Decree No. 1564 (which amended Act No. 4075, otherwise
known as the Solicitation Permit Law), provides as follows:
Sec. 2. Any person, corporation, organization, or association desiring to
solicit or receive contributions for charitable or public welfare purposes shall
first secure a permit from the Regional Offices of the Department of Social
Services and Development as provided in the Integrated Reorganization
Plan. Upon the filing of a written application for a permit in the form
prescribed by the Regional Offices of the
_______________
204
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204
All contributions designed to promote the work of the church are charitable
in nature, since religious activities depend for their support on voluntary
contributions.8 However, religious purpose is not interchangeable with the
expression charitable purpose. While it is true that there is no religious
purpose which is not also a charitable purpose, yet the converse is not
equally true, for there may be a charitable purpose which is not religious
in the legal sense of the term.9 Although the term charitable may include
matters which are religious, it is a broader term and includes matters which
are not religious, and, accordingly, there is a distinction between
charitable purpose and religious purpose, except where the two terms are
obviously used synonymously, or where the distinction has been done away
with by statute.10 The word charitable, therefore, like most other words, is
capable of different significations. For example, in the law, exempting
charitable uses from taxation, it has a very wide meaning, but under
Presidential Decree No. 1564 which is a penal law, it cannot be given such a
broad application since it would be prejudicial to petitioners.
To illustrate, the rule is that tax exemptions are generally construed strictly
against the taxpayer. However, there are cases wherein claims for
exemption from tax for religious purposes have been liberally construed as
covered in the law granting tax exemptions for charitable purposes. Thus,
the term charitable purposes, within the meaning of a statute providing that
the succession of any property passing to or for the use of any institution for
purposes only of public charity shall not be subject to succession tax, is
205
206
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207
freedom to believe and freedom to act. The first is absolute but, in the nature
of things, the second cannot be. Conduct remains subject to regulation for
the protection of society. The freedom to act must have appropriate
definitions to preserve the enforcement of that protection. In every case, the
power to regulate must be so exercised, in attaining a permissible end, as
not to unduly infringe on the protected freedom.17
208
SUPREME COURT REPORTS ANNOTATED
Centeno vs. Villalon-Pornillos
schemes and practices are to people who manipulate them. The State has
authority under the exercise of its police power to determine whether or not
there shall be restrictions on soliciting by unscrupulous persons or for
unworthy causes or for fraudulent purposes. That solicitation of contributions
under the guise of charitable and benevolent purposes is grossly abused is
a matter of common knowledge. Certainly the solicitation of contributions in
good faith for worthy purposes should not be denied, but somewhere should
be lodged the power to determine within reasonable limits the worthy from
the unworthy.22 The objectionable practices of unscrupulous persons are
prejudicial to worthy and proper charities which naturally suffer when the
confidence of the public in campaigns for the raising of money for charity is
lessened or destroyed.23 Some regulation of public solicitation is, therefore,
in the public interest.24
To conclude, solicitation for religious purposes may be subject to proper
regulation by the State in the exercise of police power. However, in the case
at bar, considering that solicitations intended for a religious purpose are not
within the coverage of Presidential Decree No. 1564, as earlier
demonstrated, petitioner cannot be held criminally liable therefor.
As a final note, we reject the reason advanced by respondent judge for
increasing the penalty imposed by the trial court, premised on the supposed
I concur in the result reached in this case that the solicitation of donations for
the repair of a chapel is not covered by P.D. No. 1564 which requires a
permit for the solicitation of contributions for charitable or public welfare
purposes. My reasons are three-fold.
First. Solicitation of contributions for the construction of a church is not
solicitation for charitable or public welfare purpose but for a religious
purpose, and a religious purpose is not necessarily a charitable or public
welfare purpose. A fund campaign for the construction or repair of a church
is not like fund drives for needy families or victims of calamity or for the
construction of a civic center and the like. Like solicitation of subscription to
religious magazines, it is part of the propagation of religious faith or
evangelization. Such solicitation calls upon the virtue of faith, not of charity,
save as those solicited for money or aid may not belong to the same religion
as the solicitor. Such solicitation does not engage the philantrophic as much
as the religious fervor of
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209
Centeno vs. Villalon-Pornillos
in this case is herself a judge of the Regional Trial Court at Kalookan City. It
bears stressing at this point that a judge is required to so behave at all times
as to promote public confidence in the integrity and impartiality of the
judiciary,25 should be vigilant against any attempt to subvert its
independence, and must resist any pressure from whatever source.26
210
SO ORDERED.
211
certiorari. A special civil action for certiorari is also available where there are
special circumstances clearly demonstrating the inadequacy of an appeal.
Criminal Law; Criminal Procedure; Information; An Information or complaint
must state explicitly and directly every act or omission constituting an
offense and must allege facts establishing conduct that a penal statute
makes criminal, and describes the property which is the subject of the theft
to advise the accused with reasonable certainty of the accusation he is
called upon to meet at the trial and to enable him to rely on the judgment
thereunder of a subsequent prose-
said allegations whose truth and veracity are hypothetically committed, and
on additional facts admitted or not denied by the prosecution.As a general
prerequisite, a motion to quash on the ground that the Information does not
constitute the offense charged, or any offense for that matter, should be
resolved on the basis of said allegations whose truth and veracity are
hypothetically committed; and on additional facts admitted or not denied by
the prosecution. If the facts alleged in the Information do not constitute an
offense, the complaint or information should be quashed by the court.
Same; Same; Same; Statutory Construction; The rule is that, penal laws are
to be construed strictly. Such rule is founded on the tenderness of the law for
the rights of individuals and on the plain principle that the power of
punishment is vested in Congress, not in the judicial department.The rule
is that, penal laws are to be construed strictly. Such rule is founded on the
tenderness of the law for the rights of individuals and on the plain principle
that the power of punishment is vested in Congress, not in the judicial
department. It is Congress, not the Court, which is to define a crime, and
ordain its punishment. Due respect for the prerogative of Congress in
defining crimes/felonies constrains the Court to refrain from a broad
interpretation of penal laws where a narrow interpretation is appropriate.
The Court must take heed to language, legislative history and purpose, in
order to strictly determine the wrath and
245
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* FIRST DIVISION.
244
244
meaning of the language used; and may not be held to include offenses
other than those which are clearly described, notwithstanding that the Court
may think that Congress should have made them more comprehensive.
Words and phrases in a statute are to be construed according to their
common meaning and accepted usage.
Same; Same; Same; When interpreting a criminal statute that does not
explicitly reach the conduct in question, the Court should not base an
expansive reading on the inferences from subjective and variable
understanding.As Chief Justice John Marshall declared, it would be
dangerous, indeed, to carry the principle that a case which is within the
reason or mischief of a statute is within its provision, so far as to punish a
crime not enumerated in the statute because it is of equal atrocity, or of
kindred character with those which are enumerated. When interpreting a
criminal statute that does not explicitly reach the conduct in question, the
Court should not base an expansive reading on inferences from subjective
and variable understanding.
Same; Theft; For one to be guilty of theft, the accused must have an intent
to steal (animus furandi) personal property, meaning the intent to deprive
another of his ownership/lawful possession of personal property which intent
is apart from and concurrently with the general criminal intent which is an
essential element of a felony of dolo (dolus malus).For one to be guilty of
theft, the accused must have an intent to steal (animus furandi) personal
property, meaning the intent to deprive another of his ownership/lawful
possession of personal property which intent is apart from and concurrently
with the general criminal intent which is an essential element of a felony of
dolo (dolus malus). An information or complaint for simple theft must allege
the following elements: (a) the taking of personal property; (b) the said
property belongs to another; (c) the taking be done
246
246
SUPREME COURT REPORTS ANNOTATED
with intent to gain; and (d) the taking be accomplished without the use of
violence or intimidation of person/s or force upon things.
Same; Same; Words and Phrases; The words personal property standing
alone, covers both tangible and intangible properties and are subject of theft
under the Revised Penal Code. The statutory definition of taking and
movable property indicates that, clearly, not all personal properties may be
the proper subjects of theft.One is apt to conclude that personal property
standing alone, covers both tangible and intangible properties and are
subject of theft under the Revised Penal Code. But the words Personal
property under the Revised Penal Code must be considered in tandem with
the word take in the law. The statutory definition of taking and movable
property indicates that, clearly, not all personal properties may be the proper
subjects of theft. The general rule is that, only movable properties which
have physical or material existence and susceptible of occupation by
another are proper objects of theft. As explained by Cuelo Callon: Cosa
juridicamente es toda sustancia corporal, material, susceptible de ser
aprehendida que tenga un valor cualquiera.
Same; Same; Same; According to Cuello Callon, in the context of the Penal
Code, only those movable properties which can be taken and carried from
the place they are found are proper subjects of theft. Intangible properties
such as rights and ideas are not subject of theft because the same cannot
be taken from the place it is found and is occupied or appropriated.
According to Cuello Callon, in the context of the Penal Code, only those
movable properties which can be taken and carried from the place they are
found are proper subjects of theft. Intangible properties such as rights and
ideas are not subject of theft because the same cannot be taken from the
place it is found and is occupied or appropriated. Solamente las cosas
muebles y corporales pueden ser objeto de hurto. La sustraccin de cosas
inmuebles y la cosas incorporales (v. gr., los derechos, las ideas) no puede
integrar este delito, pues no es posible asirlas, tomarlas, para conseguir su
apropiacin. El Codigo emplea la expresin cosas mueble en el sentido de
cosa que es susceptible de ser llevada del lugar donde se encuentra, como
dinero, joyas, ropas, etctera, asi que su concepto no coincide por completo
con el formulado por el Codigo civil (arts. 335 y 336).
247
247
248
248
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar
any felonious intent, as well as any mechanical device, such as an access
device or card, or any agency, animate or inanimate, with intent to gain.
Intent to gain includes the unlawful taking of personal property for the
purpose of deriving utility, satisfaction, enjoyment and pleasure.
Same; Same; Same; In defining theft, under Article 308 of the Revised Penal
Code, as the taking of personal property without the consent of the owner
thereof, the Philippine legislature could not have contemplated the human
voice which is converted into electronic impulses or electrical current which
are transmitted to the party called through the PSTN of respondent PLDT
and ISR of Baynet Card Ltd. within its coverage.In defining theft, under
Article 308 of the Revised Penal Code, as the taking of personal property
without the consent of the owner thereof, the Philippine legislature could not
have contemplated the human voice which is converted into electronic
impulses or electrical current which are transmitted to the party called
through the PSTN of respondent PLDT and the ISR of Baynet Card Ltd.
within its coverage. When the Revised Penal Code was approved, on
December 8, 1930, international telephone calls and the transmission and
routing of electronic voice signals or impulses emanating from said calls,
through the PSTN, IPL and ISR, were still non-existent. Case law is that,
where a legislative history fails to evidence congressional awareness of the
scope of the statute claimed by the respondents, a narrow interpretation of
the law is more consistent with the usual approach to the construction of the
statute. Penal responsibility cannot be extended beyond the fair scope of the
statutory mandate.
Words and Phrases; A phreaker is one who engages in the act of
manipulating phones and illegally markets telephone services. Unless the
phone company replaces all its hardware, phreaking would be impossible to
stop.The conduct complained of by respondent PLDT is reminiscent of
phreaking (a slang term for the action of making a telephone system to do
something that it normally should not allow by making the phone company
bend over and grab its ankles). A phreaker is one who engages in the act
of manipulating phones and illegally markets telephone services. Unless the
phone company replaces all its hardware, phreaking would be impossible to
stop. The phone companies in North America were impelled to replace all
their hardware and adopted full digital switching system known as the
Common Channel Inter Office Signaling.
249
the petitioner theft under the aforequoted provision of the Revised Penal
Code.
Same; Same; Republic Act 8484 (Access Devices Regulation Act of 1998);
Among the prohibited acts enumerated in Section 9 of Republic Act 8484 are
the acts of obtaining money or anything of value through the use of an
access device, with intent to defraud or intent to gain and fleeing thereafter;
and of effecting transactions with one or more access devices issued to
another person or persons to receive payment or any other thing of value.
Under Section 11 of the law, conspiracy to commit access devices fraud is a
crime.In the Philippines, Congress has not amended the Revised Penal
Code to include theft of services or theft of business as felonies. Instead, it
approved a law, Republic Act No. 8484, otherwise known as the Access
Devices Regulation Act of 1998, on February 11, 1998. Under the law, an
250
Phreaking occurred only during the 1960s and 1970s, decades after the
Revised Penal Code took effect.
Criminal Law; Information; Theft; The petitioner is not charged, under the
Amended Information, for theft of telecommunication or telephone services
offered by PLDT. Even if he is, the term personal property under Article 308
of the Revised Penal Code cannot be interpreted beyond its seams so as to
include telecommunication or telephone services or computer services for
that matter.The petitioner is not charged, under the Amended Information,
for theft of telecommunication or telephone services offered by PLDT. Even
if he is, the term personal property under Article 308 of the Revised Penal
Code cannot be interpreted beyond its seams so as to include
telecommunication or telephone services or computer services for that
matter. The word service has a variety of meanings dependent upon the
context, or the sense in which it is used; and, in some instances, it may
include a sale. For instance, the sale of food by restaurants is usually
referred to as service, although an actual sale is involved. It may also
mean the duty or labor to be rendered by one person to another;
performance of labor for the benefit of another. In the case of PLDT, it is to
render local and international telecommunications services and such other
services as authorized by the CPCA issued by the NTC. Even at common
law, neither time nor services may be taken and occupied or appropriated. A
service is generally not considered property and a theft of service would not,
therefore, constitute theft since there can be no caption or asportation.
Neither is the unauthorized use of the equipment and facilities of PLDT by
250
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar
access device means any card, plate, code, account number, electronic
serial number, personal identification number and other telecommunication
services, equipment or instrumentalities-identifier or other means of account
access that can be used to obtain money, goods, services or any other thing
of value or to initiate a transfer of funds other than a transfer originated
solely by paper instrument. Among the prohibited acts enumerated in
Section 9 of the law are the acts of obtaining money or anything of value
through the use of an access device, with intent to defraud or intent to gain
and fleeing thereafter; and of effecting transactions with one or more access
devices issued to another person or persons to receive payment or any
other thing of value. Under Section 11 of the law, conspiracy to commit
access devices fraud is a crime. However, the petitioner is not charged of
violation of R.A. 8484.
PETITION for review on certiorari of a decision of the Court of Appeals.
4 Id., at p. 131.
252
252
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar
One such alternative calling service is that offered by Baynet Co., Ltd.
(Baynet) which sells Bay Super Orient Card phone cards to people who
call their friends and relatives in the Philippines. With said card, one is
entitled to a 27-minute call to the Philippines for about 37.03 per minute.
After dialing the ISR access number indicated in the phone card, the ISR
operator requests the subscriber to give the PIN number also indicated in
the phone card. Once the callers identity (as purchaser of the phone card)
is confirmed, the ISR operator will then provide a Philippine local line to the
requesting caller via the IPL. According to PLDT, calls made through the IPL
never pass the toll center of IGF operators in the Philippines. Using the local
line, the Baynet card user is able to place a call to any point in the
Philippines, provided the local line is National Direct Dial (NDD) capable.5
PLDT asserts that Baynet conducts its ISR activities by utilizing an IPL to
course its incoming international long distance calls from Japan. The IPL is
linked to switching equipment, which is then connected to PLDT telephone
lines/ numbers and equipment, with Baynet as subscriber. Through the use
of the telephone lines and other auxiliary equipment, Baynet is able to
connect an international long distance call from Japan to any part of the
Philippines, and make it appear as a call originating from Metro Manila.
Consequently, the operator of an ISR is able to evade payment of access,
termination or bypass charges and accounting rates, as well as compliance
with the regulatory requirements of the NTC. Thus, the ISR operator offers
international telecommunication services at a lower rate, to the damage and
prejudice of legitimate operators like PLDT.6
PLDT pointed out that Baynet utilized the following equipment for its ISR
activities: lines, cables, and antennas or equipment or device capable of
transmitting air waves or
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253
Laurel vs. Abrogar
frequency, such as an IPL and telephone lines and equipment; computers or
any equipment or device capable of accepting information applying the
prescribed process of the information and supplying the result of this
process; modems or any equipment or device that enables a data terminal
equipment such as computers to communicate with other data terminal
equipment via a telephone line; multiplexers or any equipment or device that
enables two or more signals from different sources to pass through a
common cable or transmission line; switching equipment, or equipment or
device capable of connecting telephone lines; and software, diskettes, tapes
or equipment or device used for recording and storing information.7
PLDT also discovered that Baynet subscribed to a total of 123 PLDT
telephone lines/numbers.8 Based on the Traffic Study conducted on the
volume of calls passing through Baynets ISR network which bypass the IGF
toll center, PLDT incurred an estimated monthly loss of P10,185,325.96.9
Records at the Securities and Exchange Commission (SEC) also revealed
that Baynet was not authorized to provide international or domestic long
distance telephone service in the country. The following are its officers: Yuji
Hijioka, a Japanese national (chairman of the board of directors); Gina C.
Mukaida, a Filipina (board member and president); Luis Marcos P. Laurel, a
Filipino (board member and corporate secretary); Ricky Chan Pe, a Filipino
(board member and treasurer); and Yasushi Ueshima, also a Japanese
national (board member).
Upon complaint of PLDT against Baynet for network fraud, and on the
strength of two search warrants10 issued by the RTC of Makati, Branch 147,
National Bureau of Investigation (NBI) agents searched its office at the 7th
Floor, SJG Building, Kalayaan Avenue, Makati City on November 8, 1999.
_______________
7 Id., at p. 138.
8 Id., at p. 134.
9 Id., at p. 140.
254
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar
Atsushi Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and Rolando J.
Villegas were arrested by NBI agents while in the act of manning the
operations of Baynet. Seized in the premises during the search were
numerous equipment and devices used in its ISR activities, such as
multiplexers, modems, computer monitors, CPUs, antenna, assorted
computer peripheral cords and microprocessors, cables/wires, assorted
PLDT statement of accounts, parabolic antennae and voltage regulators.
State Prosecutor Ofelia L. Calo conducted an inquest investigation and
issued a Resolution11 on January 28, 2000, finding probable cause for theft
under Article 308 of the Revised Penal Code and Presidential Decree No.
40112 against the respondents therein, including Laurel.
_______________
call is destined, effectively stealing this business from PLDT while using its
facilities in the estimated amount of P20,370,651.92 to the damage and
prejudice of PLDT, in the said amount.
the Information for violation of Presidential Decree (P.D.) No. 401 filed and
pending in the Metropolitan Trial Court of Makati City, docketed as Criminal
Case No. 276766.
CONTRARY TO LAW.13
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256
14 Id., at pp. 67-76.
256
257
258
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar
its the use of ISR, the facts alleged in the Amended Information will show
how the alleged crime was committed by conducting ISR, to the damage
and prejudice of PLDT.
259
260
260
Laurel then filed a Petition for Certiorari with the CA, assailing the Order of
the RTC. He alleged that the respondent judge gravely abused his discretion
in denying his Motion to Quash the Amended Information.21 As gleaned
from the material averments of the amended information, he was charged
with stealing the international long distance calls belonging to PLDT, not its
business. Moreover, the RTC failed to distinguish between the business of
PLDT (providing services for international long distance calls) and the
revenues derived therefrom. He opined that a business or its revenues
cannot be considered as personal property under Article 308 of the Revised
Penal Code, since a business is (1) a commercial or mercantile activity
customarily engaged in as a means of livelihood and typically involving
some independence of judgment and power of decision; (2) a commercial or
industrial enterprise; and (3) refers to transactions, dealings or intercourse of
any nature. On the other hand, the term revenue is defined as the income
that comes back from an investment (as in real or personal property); the
annual or periodical rents, profits, interests, or issues of any species of real
or personal property.22
21 CA Rollo, p. 6.
22 Id., at pp. 9-11.
23 Id.
24 Id.
25 Resolution No. 149, Series of 1999 dated April 16, 1999 (I.S. No. 963884), Rollo, pp. 95-97.
26 Id.
27 Id., at pp. 32-47.
Petitioner avers that the petition for a writ of certiorari may be filed to nullify
an interlocutory order of the trial court which was issued with grave abuse of
discretion amounting to excess or lack of jurisdiction. In support of his
petition before the Court, he reiterates the arguments in his pleadings filed
before the CA. He further claims that while the right to carry on a business or
an interest or participation in business is considered property under the New
Civil Code, the term business, however, is not. He asserts that the
Philippine
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261
28 21 Phil. 553 (1911).
VOL. 483, FEBRUARY 27, 2006
261
Laurel vs. Abrogar
certiorari under Rule 65 of the Rules of Court was not the proper remedy of
the petitioner. On the merits of the petition, it held that while business is
generally an activity which is abstract and intangible in form, it is
nevertheless considered property under Article 308 of the Revised Penal
Code. The CA opined that PLDTs business of providing international calls is
personal property which may be the object of theft, and cited United States
v. Carlos28 to support such conclusion. The tribunal also cited Strochecker
v. Ramirez,29 where this Court ruled that one-half interest in a days
business is personal property under Section 2 of Act No. 3952, otherwise
known as the Bulk Sales Law. The appellate court held that the operations of
the ISR are not subsumed in the charge for violation of P.D. No. 401.
Laurel, now the petitioner, assails the decision of the CA, contending that
THE COURT OF APPEALS ERRED IN RULING THAT THE PERSONAL
PROPERTY ALLEGEDLY STOLEN PER THE INFORMATION IS NOT THE
INTERNATIONAL LONG DISTANCE CALLS BUT THE BUSINESS OF
PLDT.
THE COURT OF APPEALS ERRED IN RULING THAT THE TERM
BUSINESS IS PERSONAL PROPERTY WITHIN THE MEANING OF ART.
308 OF THE REVISED PENAL CODE.30
262
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar
Legislature, which approved the Revised Penal Code way back in January
1, 1932, could not have contemplated to include international long distance
calls and business as personal property under Article 308 thereof.
In its comment on the petition, the Office of the Solicitor General (OSG)
maintains that the amended information clearly states all the essential
elements of the crime of theft. Petitioners interpretation as to whether an
international long distance call is personal property under the law is
inconsequential, as a reading of the amended information readily reveals
that specific acts and circumstances were alleged charging Baynet, through
its officers, including petitioner, of feloniously taking, stealing and illegally
using international long distance calls belonging to respondent PLDT by
conducting ISR operations, thus, routing and completing international long
distance calls using lines, cables, antenna and/or airwave frequency which
31 Id., at p. 689.
32 Id., at p. 691.
263
network, lines or facilities are personal properties under Article 308 of the
Revised Penal Code; so is the use of said telephone services/telephone
network, lines or facilities which allow electronic voice signals to pass
through the same and ultimately to the called partys number. It is akin to
electricity which, though intangible property, may nevertheless be
appropriated and can be the object of theft. The use of respondent PLDTs
telephone network, lines, or facilities over a period of time for consideration
is the business that it provides to its customers, which enables the latter to
send various messages to intended recipients. Such use over a period of
time is akin to merchandise which has value and, therefore, can be
appropriated by another. According to respondent PLDT, this is what actually
happened when petitioner Laurel and the other accused below conducted
illegal ISR operations.34
The petition is meritorious.
The issues for resolution are as follows: (a) whether or not the petition for
certiorari is the proper remedy of the petitioner in the Court of Appeals; (b)
whether or not international telephone calls using Bay Super Orient Cards
through the telecommunication services provided by PLDT for such calls, or,
in short, PLDTs business of providing said telecommunication services, are
proper subjects of theft under Article 308 of the Revised Penal Code; and (c)
whether or not the trial court committed grave abuse of discretion amounting
to
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264
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar
35 Madarang v. Court of Appeals, G.R. No. 143044, July 14, 2005, 463
SCRA 318, 327 (2005).
36 G.R. No. 148156, September 27, 2004, 439 SCRA 202 (2004).
37 Id., at p. 211.
265
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266
42 Garcia v. Court of Appeals, 334 Phil. 621, 634; 266 SCRA 678 (1997);
People v. Navarro, 75 Phil. 516, 518 (1945).
or any offense for that matter, should be resolved on the basis of said
allegations whose truth and veracity are hypothetically committed;41 and on
additional facts admitted or not denied by the prosecution.42 If the facts
alleged in the Information do not constitute an offense, the complaint or
information should be quashed by the court.43
267
267
On the second issue, we find and so hold that the international telephone
calls placed by Bay Super Orient Card holders, the telecommunication
services provided by PLDT and its business of providing said services are
not personal properties under Article 308 of the Revised Penal Code. The
construction by the respondents of Article 308 of the said Code to include,
within its coverage, the aforesaid international telephone calls,
telecommunication services and business is contrary to the letter and intent
of the law.
The rule is that, penal laws are to be construed strictly. Such rule is founded
on the tenderness of the law for the rights of individuals and on the plain
principle that the power of punishment is vested in Congress, not in the
judicial department. It is Congress, not the Court, which is to define a crime,
and ordain its punishment.44 Due respect for the prerogative of Congress in
defining crimes/felonies constrains the
explicitly reach the conduct in question, the Court should not base an
expansive reading on inferences from subjective and variable
understanding.49
Art. 308. Who are liable for theft.Theft is committed by any person who,
with intent to gain but without violence, against or intimidation of persons nor
force upon things, shall take personal property of another without the latters
consent.
One is apt to conclude that personal property standing alone, covers both
tangible and intangible properties and are subject of theft under the Revised
Penal Code. But the words Personal property under the Revised Penal
Code must be considered in tandem with the word take in the law. The
statutory definition of taking and movable property indi-
_______________
_______________
47 Kelley v. State, 119 N.E.2d 322 (1954); State v. McGraw, 480 N.E.2d 552
(1985).
48 United States v. Wiltberger, supra note 44.
268
(1) Apoderamiento de una cosa mueble; (2) Que la cosa mueble sea ajena;
(3) Que el apoderamiento se verifique con intencin de lucro; (4) Que se
tome la cosa sin la voluntad de su dueo; (5) Que se realice el
apoderamiento de la cosa sin violencia intimidacin en las personas ni
fuerza en las cosas (Viada, 220-221).
268
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar
The provision was taken from Article 530 of the Spanish Penal Code which
reads:
51 People v. Sison, 379 Phil. 363, 384; 322 SCRA 345 (2000); People v.
Bustinera, G.R. No. 148233, June 8, 2004, 431 SCRA 284, 291.
269
For one to be guilty of theft, the accused must have an intent to steal
(animus furandi) personal property, meaning the intent to deprive another of
269
cates that, clearly, not all personal properties may be the proper subjects of
theft. The general rule is that, only movable properties which have physical
or material existence and susceptible of occupation by another are proper
objects of theft.52 As explained by Cuelo Callon: Cosa juridicamente es
toda sustancia corporal, material, susceptible de ser aprehendida que tenga
un valor cualquiera.53
270
According to Cuello Callon, in the context of the Penal Code, only those
movable properties which can be taken and carried from the place they are
found are proper subjects of theft. Intangible properties such as rights and
ideas are not subject of theft because the same cannot be taken from the
place it is found and is occupied or appropriated.
270
SUPREME COURT REPORTS ANNOTATED
of theft or larceny because they are without form or substance, the mere
breath of the Congress. On the other hand, goods, wares and merchandise
of businessmen and credit cards issued to them are movable properties with
physical and material existence and may be taken by another; hence, proper
subjects of theft.
There is taking of personal property, and theft is consummated when the
offender unlawfully acquires possession of personal property even if for a
short time; or if such property is under the dominion and control of the thief.
The taker, at some particular amount, must have obtained complete and
absolute possession and control of the property adverse to the rights of the
owner or the lawful possessor thereof.56 It is not necessary that the property
be actually carried away out of the physical possession of the lawful
possessor or that he should have made his escape with it.57 Neither
asportation nor actual manual possession of property is required.
Constructive possession of the thief of the property is enough.58
The essence of the element is the taking of a thing out of the possession of
the owner without his privity and consent and without animus revertendi.59
Taking may be by the offenders own hands, by his use of innocent persons
without any felonious intent, as well as any mechanical device, such as an
access device or card, or any agency, animate or inanimate, with intent to
gain. Intent to gain includes the unlawful taking of personal property for the
purpose of deriving utility, satisfaction, enjoyment and pleasure.60
_______________
53 Id.
54 See note 52, p. 725 (Italics supplied).
55 36 C.J.S. 737.
57 People v. Salvilla, G.R. No. 86163, April 26, 1990, 184 SCRA 671, 677
(1990).
58 Harris v. State, 14 S.W. 390 (1890).
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272
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar
being transformed either into heat, light, or power, at the option of the
purchaser. In Woods v. People,65 the Supreme Court of Illinois declared that
there is nothing in the nature of gas used for illuminating purposes which
renders it incapable of being feloniously taken and carried away. It is a
valuable article of merchandise, bought and sold like other personal
property, susceptible of being severed from a mass or larger quantity and of
being transported from place to place.
Gas and electrical energy should not be equated with business or services
provided by business entrepreneurs to the public. Business does not have
an exact definition. Business is referred as that which occupies the time,
attention and labor of men for the purpose of livelihood or profit. It embraces
everything that which a person can be employed.66 Business may also
mean employment, occupation or profession. Business is also defined as a
commercial activity for gain benefit or advantage.67 Business, like services
in business, although are properties, are not proper subjects of theft under
the Revised Penal Code because the same cannot be taken or occupied.
In defining theft, under Article 308 of the Revised Penal Code, as the taking
of personal property without the consent of the owner thereof, the Philippine
legislature could not have contemplated the human voice which is converted
into electronic impulses or electrical current which are transmitted to the
party called through the PSTN of respondent PLDT and the ISR of Baynet
Card Ltd. within its coverage. When the Revised Penal Code was approved,
on December 8, 1930, international telephone calls and the transmission
and routing of electronic voice signals or impulses emanating from said
calls, through the PSTN, IPL and ISR, were still nonexistent. Case law is
that, where a legislative history fails to evidence congressional awareness of
the scope of the statute claimed by the respondents, a narrow interpretation
of the law is more consistent with the usual approach to the construction of
the statute. Penal responsibility cannot be extended beyond the fair scope of
the statutory mandate.70
_______________
67 Blacks Law Dictionary, 5th ed., p. 179; Union League Club v. Johnson,
108 P.2d 487, 490 (1940).
273
70 People v. Case, 42 N.Y.S. 2d 101.
VOL. 483, FEBRUARY 27, 2006
274
273
Laurel vs. Abrogar
274
We agree with the contention of the petitioner that, as gleaned from the
material averments of the Amended Information, he is charged of stealing
the international long distance calls belonging to PLDT and the use thereof,
through the ISR. Contrary to the claims of the OSG and respondent PLDT,
the petitioner is not charged of stealing P20,370,651.95 from said
respondent. Said amount of P20,370,651.95 alleged in the Amended
Information is the aggregate amount of access, transmission or termination
charges which the PLDT expected from the international long distance calls
of the callers with the use of Baynet Super Orient Cards sold by Baynet Co.
Ltd.
offered by PLDT. Even if he is, the term personal property under Article 308
of the Revised Penal Code cannot be interpreted beyond its seams so as to
include telecommunication or telephone services or computer services for
that matter. The word service has a variety of meanings dependent upon
the context, or the sense in which it is used; and, in some instances, it may
include a sale. For instance, the sale of food by restaurants is usually
referred to as service, although an actual sale is involved.74 It may also
mean the duty or labor to be rendered by one person to another;
performance of labor for the benefit of another.75 In the case of PLDT, it is to
render local and international telecommunications services and such other
services as authorized by the CPCA issued by the NTC. Even at common
law, neither time nor services may be taken and occupied or appropriated.76
A service is generally not considered property and a theft of service would
not, therefore, constitute theft since there can be no caption or
asportation.77 Neither is the unauthorized use of the equipment and
facilities of PLDT by the petitioner theft under the aforequoted provision of
the Revised Penal Code.78
If it was the intent of the Philippine Legislature, in 1930, to include services
to be the subject of theft, it should have incorporated the same in Article 308
of the Revised Penal Code. The Legislature did not. In fact, the Revised
Penal Code does not even contain a definition of services.
If taking of telecommunication services or the business of a person, is to be
proscribed, it must be by special statute79 or
_______________
74 Central Power and Light Co. v. State, 165 S.W. 2d 920 (1942).
275
276
276
SUPREME COURT REPORTS ANNOTATED
professional services, have not been included within the traditional scope of
the term property in ordinary theft statutes. Hence, they decided to
incorporate in the Code Section 223.7, which defines and penalizes theft of
services, thus:
277
278
the credit card under Article 308 of the Revised Penal Code; violation of
Republic Act No. 8484; and estafa under Article 315(2)(a) of the Revised
Penal Code with the service provider as the private complainant. The
petitioner is not charged of estafa before the RTC in the Amended
Information.
Section 33 of Republic Act No. 8792, Electronic Commerce Act of 2000
provides:
Sec. 33. Penalties.The following Acts shall be penalized by fine and/or
imprisonment, as follows:
a) Hacking or cracking which refers to unauthorized access into or
interference in a computer system/server or information and
279
felonies. Instead, it approved a law, Republic Act No. 8484, otherwise known
as the Access Devices Regulation Act of 1998, on February 11, 1998. Under
the law, an access device means any card, plate, code, account number,
electronic serial number, personal identification number and other
telecommunication services, equipment or instrumentalities-identifier or
other means of account access that can be used to obtain money, goods,
services or any other thing of value or to initiate a transfer of funds other
than a transfer originated solely by paper instrument. Among the prohibited
acts enumerated in Section 9 of the law are the acts of obtaining money or
anything of value through the use of an access device, with intent to defraud
or intent to gain and fleeing thereafter; and of effecting transactions with one
or more access devices issued to another person or persons to receive
payment or any other thing of value. Under Section 11 of the law, conspiracy
to commit access devices fraud is a crime. However, the petitioner is not
charged of violation of R.A. 8484.
279
333
Petitioners counsel now was the same counsel engaged by Davao Gulf
Lumber Corporation in said case, wherein we upheld the appellate courts
computation of the refund based on rates provided in Sections 1 and 2 of
R.A. No. 1435. Despite said ruling, petitioner through counsel now
undauntingly urges this Court to take a second look at the ruling in Davao
Gulf, citing as reasons the very same arguments therein raised. Despite
petitioners studied assertions, however we find no reason to depart from our
Davao Gulf decision. While petitioner is indeed entitled to a refund under
Section 5 of R.A. No. 1435, we hold that since the partial refund is in the
nature of a tax exemption, it must be construed strictly against the grantee.
Thus, we reiterate our well-considered view in Davao Gulf: We have
carefully scrutinized RA 1435 and the subsequent pertinent statutes and
found no expression of a legislative will authorizing a refund based on higher
rates claimed by petitioner. The mere fact that the privilege of refund was
included in Section 5 and not in Section 1, is insufficient to support
petitioners claim. When the law itself does not explicitly provide that a
refund under RA 1435 may be based on higher rates which were
nonexistent at the time of its enactment, this Court cannot presume
otherwise. A legislative lacuna cannot be filled by judicial fiat.
* SECOND DIVISION.
333
This is an appeal by certiorari under Rule 45 of the Rules of Court from the
decision of the Court of Appeals which affirmed the judgment of the Court of
Tax Appeals in C.T.A. Case No. 3524, partially granting a claim for tax refund
of specific taxes in favor of petitioner Aras-Asan Timber Co., Inc.
Briefly, the facts of the case are as follows:
Petitioner Aras-Asan Timber Company Inc., is a duly-licensed forest
concessionaire with a Timber Licensing Agreement entered into with the
then Ministry of Natural Resources, now Department of Environment and
Natural Resources. During the period beginning from July 1, 1980 to
October 31, 1981, petitioner purchased
334
334
SUPREME COURT REPORTS ANNOTATED
Aras-Asan Timber Co., Inc. vs. Commissioner of Internal Revenue
from Mobil Oil Philippines, Inc., refined and manufactured mineral oil, motor
fuel, and diesel fuel oil, which petitioner actually and exclusively used in
connection with the operation of its forest concession.
Pursuant to Sections 153 and 156 of the 1977 National Internal Revenue
Code (NIRC),1 Mobil Oil Philippines, Inc., paid and passed
________________
335
Aras-Asan Timber Co., Inc. vs. Commissioner of Internal Revenue
1 Sections 153 and 156 of the 1977 NIRC (formerly Sections 142 and 145 of
the NIRC, as amended) underwent several amendments. At the time
petitioners purchased the manufactured oils and paid the corresponding
specific taxes, the following provisions of Sections 153 and 156 of the 1977
NIRC were applicable:
(A) Presidential Decree No. 1672 (effective February 8, 1980 to March 20,
1981)
be deemed to have been removed for motive power, unless shown to the
contrary;
(f) Thinners and solvents, per liter of volume capacity, fifty-seven centavos;
Petitioner based its claim for refund on the Supreme Court ruling in the case
of Insular Lumber Co. vs. Court of Tax Appeals2 and Section 53 of Republic
Act No. 1435 or An Act to Provide Means for
_____________________
336
SUPREME COURT REPORTS ANNOTATED
otherwise provided for by special laws, if the denatured alcohol is mixed with
gasoline, the specific tax on which has already been paid, only the alcohol
content shall be subject to the tax herein prescribed. For the purpose of this
subsection, the removal of denatured alcohol of not less then one hundred
eighty degrees proof (ninety per centum absolute alcohol) shall be deemed
to have been removed for motive power, unless shown to the contrary;
(e) Processed gas, per liter of volume capacity, three centavos;
(f) Thinners and solvents, per liter of volume capacity, sixty-one centavos;
(g) Liquefied petroleum gas, per kilogram, twenty-one centavos: Provided,
That liquified petroleum gas used for motive power shall be taxed at the
equivalent rate as the specific tax on diesel fuel oil;
(h) Asphalts, per kilogram, twelve centavos;
(i) Greases, waxes and petroleum, per kilogram, fifty centavos;
(j) Aviation turbe-jet fuel, per liter of volume capacity, sixty-four centavos.
xxx
SEC. 156. Specific tax on diesel fuel oil.On fuel oil, commercially known
as diesel fuel oil, and all similar fuel oils, having more or less the same
generating power, per liter of volume capacity, twenty-five and one-half
centavos, which tax shall attach to this fuel oil as soon as it is in existence
as such.
operations, twenty-five per centum of the specific tax paid thereon shall be
refunded by the Collector of Internal Revenue upon submission of proof of
actual use of oils and under similar conditions enumerated in subparagraphs
one and two of section one hereof, amending section one hundred forty-two
of the Internal Revenue Code: Provided, further, That no new road shall be
constructed unless the routes or location thereof shall have been approved
by the Commissioner of Public Highways after a determination that such
road can be made part of an integral and articulated route in the Philippine
Highway System, as required in section twenty-six of the Philippine Highway
Act of 1953.
4 Rollo, pp. 15-17.
5 Id. at 87-109.
6 202 SCRA 137 (1991).
7 Dated March 25, 1992.
338
338
SUPREME COURT REPORTS ANNOTATED
Aras-Asan Timber Co., Inc. vs. Commissioner of Internal Revenue
Sections I8 and 29 of R.A. No. 1435, instead of the amount which petitioner
actually paid under Sections 153 and 156 of the 1977
__________________
(a) Kerosene or petroleum, per liter of volume capacity, two and one-half
centavos;
(b) Lubricating oils, per liter of volume capacity, seven centavos;
(c) Naptha, gasoline, and all other similar products of distillation, per liter of
volume capacity, eight centavos; and
(d) On denatured alcohol to be used for motive power, per liter of volume
capacity, one centavo: Provided, That if the denatured alcohol is mixed with
gasoline, the specific tax on which has already been paid, only the alcohol
content shall be subject to the tax herein prescribed. For the purpose of this
subsection, the removal of denatured alcohol of not less than one hundred
eighty degrees proof (ninety per centum absolute alcohol) shall be deemed
to have been removed for motive power, unless shown to the contrary.
Whenever any of the oils mentioned above are, during the five years from
June eighteen, nineteen hundred and fifty two, used in agriculture and
aviation, fifty per centum of the specific tax paid thereon shall be refunded
by the Collector of Internal Revenue upon the submission of the following:
(1) A sworn affidavit of the producer and two disinterested persons proving
that the said oils were actually used in agriculture, or in lieu thereof.
(2) Should the producer belong to any producers association or federation,
duly registered with the Securities and Exchange Commission, the affidavit
of the president of the association or federation, attesting to the fact that the
oils were actually used in agriculture.
(3) In the case of aviation oils, a sworn certificate satisfactory to the
Collector proving that the said oils were actually used in aviation: Provided,
That no such refunds shall be granted in respect to the oils used in aviation
by citizens and corporations of foreign countries which do not grant
equivalent refunds or exemptions in respect to similar oils used in aviation
by citizens and corporations of the Philippines.
9 SEC. 2. Section one hundred and forty-five of the National Internal
Revenue Code, as amended, is further amended to read as follows:
339
SEC. 145. Specific Tax on Diesel fuel oil.On fuel oil, commercially known
as diesel fuel oil, and on all similar fuel oils, having more or less the same
generating power, there shall be collected, per metric ton, one peso.
10 Supra, note 4 at 49-67.
11 Id. at 69-70.
340
340
SUPREME COURT REPORTS ANNOTATED
tion, it must be construed strictly against the grantee. Thus, we reiterate our
well-considered view in Davao Gulf:
We have carefully scrutinized RA 1435 and the subsequent pertinent
statutes and found no expression of a legislative will authorizing a refund
based on higher rates claimed by petitioner. The mere fact that the privilege
of refund was included in Section 5 and not in Section 1, is insufficient to
support petitioners claim. When the law itself does not explicitly provide that
a refund under RA 1435 may be based on higher rates which were
nonexistent at the time of its enactment, this Court cannot presume
otherwise. A legislative lacuna cannot be filled by judicial fiat.18
342
SUPREME COURT REPORTS ANNOTATED
People vs. Morales
The taxpayer may file a claim for refund or credit with the Commissioner of
Internal Revenue, within two (2) years after payment of tax, before any suit
in CTA is commenced. (Philippine Bank of Communications vs.
Commissioner of Internal Revenue, 302 SCRA 241 [1999])
Tax refunds are in the nature of tax exemptions, and as such they are
regarded as in derogation of sovereign authority and to be construed
strictissimi juris against the person or entity claiming the exemption.
(Commissioner of Internal Revenue vs. S.C. Johnson and Son, Inc., 309
SCRA 87 [1999])
SO ORDERED.
Bellosillo (Chairman), Mendoza, Buena and De Leon, Jr., JJ., concur.
Petition denied, judgment affirmed.
Notes.In the context of 230 of the National Internal Revenue Code, which
provides for a two-year period of prescription counted from the date of
payment of the tax for actions for refund of corporate income tax, the twoyear period should be computed from the time of actual filing of the
Adjustment Return or Annual Income Tax Return. (Commissioner of Internal
Revenue vs. Court of Appeals, 301 SCRA 435 [1999])
__________________
18 293 SCRA 76, 88 (1998) citing: Paper Industries Corp. of the Phil. vs.
CA, G.R. Nos. 106984-85, 250 SCRA 434, 455 (1995).
342
which others are subjected. Consequently, the rule that tax exemption
should be applied in strictissimi juris against the taxpayer and liberally in
favor of the government applies equally to tax exclusions. To construe
otherwise the in lieu of all taxes provision invoked is to be inconsistent with
the theory that R.A. No. 7925, 23 grants tax exemption because of a
similar grant to Globe and Smart.
95
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* THIRD DIVISION.
94
94
GARCIA, J.:
Twice, this Court has denied the earlier plea of petitioner Philippine Long
Distance Company, Inc. (PLDT) to be adjudged exempt from the payment of
franchise tax assessed against it by local government units. The first was in
the 2001 case of PLDT vs. City of Davao 1 and the second, in the very
recent case of PLDT vs. City of Bacolod, et al. 2 Indeed, no less than the
Court en banc, in its Resolution of March 25, 2003,3 denied PLDTs motion
for reconsideration in Davao. In both cases, the Court in effect ruled that the
desired relief is not legally feasible.
No less than PLDTs third, albeit this time involving the Province of Laguna,
the instant similar petition for review on certiorari under Rule 45 of the Rules
of Court seeks the reversal of the decision dated 28 November 20014 of the
Regional Trial Court at Laguna, dismissing PLDTs petition in its Civil Case
No. SC-3953, an action for refund of franchise tax.
Except for inconsequential factual details which understandably vary from
the first two (2) PLDT cases, the legal landscape is practically the same:
PLDT is a holder of a legislative franchise under Act No. 3436, as amended,
to render local and international telecommunications services. On August
24, 1991, the terms and
_______________
conditions of its franchise were consolidated under Republic Act No. 7082,5
Section 12 of which embodies the so-called in-lieu-of-all taxes clause,
whereunder PLDT shall pay a franchise tax equivalent to three percent (3%)
of all its gross receipts, which franchise tax shall be in lieu of all taxes.
More specifically, the provision pertinently reads:
SEC. 12. x x x In addition thereto, the grantee, its successors or assigns
shall pay a franchise tax equivalent to three percent (3%) of all gross
receipts of the telephone or other telecommunications businesses
transacted under this franchise by the grantee, its successors or assigns,
and the said percentage shall be in lieu of all taxes on this franchise or
earnings thereof: x x x (Italics ours).
Meanwhile, or on January 1, 1992, Republic Act No. 7160, otherwise known
as the Local Government Code, took effect. Section 137 of the Code, in
relation to Section 151 thereof, grants provinces and other local government
units the power to impose local franchise tax on businesses enjoying a
franchise, thus:
SEC. 137. Franchise Tax.Notwithstanding any exemption granted by any
law or other special law, the province may impose a tax on businesses
enjoying a franchise, at a rate not exceeding fifty percent (50%) of one
percent (1%) of the gross annual receipts for the preceding calendar year
based on the incoming receipt, or realized, within its territorial jurisdiction.
By Section 193 of the same Code, all tax exemption privileges then enjoyed
by all persons, whether natural or juridicial, save those expressly mentioned
therein, were withdrawn, necessarily including those taxes from which PLDT
is exempted under the in-lieu-of-all taxes clause in its charter. We quote
Section 193:
_______________
96
96
97
the franchise, the life span of the franchise, or the type of the service
authorized by the franchise.
98
97
Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna
SEC. 193. Withdrawal of Tax Exemption Privileges.Unless otherwise
provided in this Code, tax exemptions or incentives granted to, or presently
enjoyed by all persons, whether natural or juridical, including governmentowned or controlled corporations, except local water districts, cooperatives
duly registered under R.A. 6938, non-stock and non-profit hospitals and
educational institutions, are hereby withdrawn upon the effectivity of this
Code.
Invoking its authority under Section 137, supra, of the Local Government
Code, the Province of Laguna, through its local legislative assembly,
enacted Provincial Ordinance No. 01-92, made effective January 1, 1993,
imposing a franchise tax upon all businesses enjoying a franchise, PLDT
included.
On January 28, 1998, PLDT, in compliance with the aforementioned
Ordinance, paid the Province of Laguna its local franchise tax liability for the
year 1998 in the amount of One Million Eighty-One Thousand Two Hundred
Twelve and 10/100 Pesos (P1,081,212.10).
Prior thereto, Congress, aiming to level the playing field among
telecommunication companies, enacted Republic Act No. 7925, otherwise
known as the Public Telecommunications Policy Act of the Philippines, which
took effect on March 16, 1995. To achieve the legislative intent, Section 23
thereof, also known as the most-favored treatment clause, provides for an
equality of treatment in the telecommunications industry, to wit:
SEC. 23. Equality of Treatment in the Telecommunications Industry.Any
advantage, favor, privilege, exemption, or immunity granted under existing
franchises, or may hereafter be granted, shall ipso facto become part of
previously granted telecommunications franchises and shall be accorded
immediately and unconditionally to the grantees of such franchises:
Provided, however, That the foregoing shall neither apply to nor affect
provisions of telecommunications franchises concerning territory covered by
98
SUPREME COURT REPORTS ANNOTATED
Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna
Then, on June 2, 1998, the Department of Finance, thru its Bureau of Local
Government Finance (BLGF), issued a ruling to the effect that as of March
16, 1995, the effectivity date of the Public Telecommunications Policy Act of
the Philippines,6 PLDT, among other telecommunication companies,
became exempt from local franchise tax. Pertinently, the BLGF ruling reads:
It appears that RA 7082 further amending Act No. 3436 which granted to
PLDT a franchise to install, operate and maintain a telephone system
throughout the Philippine Islands was approved on August 3, 1991. Section
12 of said franchise, likewise contains the in lieu of all taxes proviso.
In this connection, Section 23 of RA 7929, quoted hereunder, which was
approved on March 1, 1995 provides for the equality of treatment in the
telecommunications industry:
xxx
xxx
xxx
On the basis of the aforequoted ruling, PLDT refused to pay the Province of
Laguna its local franchise tax liability for 1999. And, on December 22, 1999,
it even filed with the Office of the Provincial Treasurer a written claim for
refund of the amount it paid as local franchise tax for 1998.
_______________
99
Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna
With no refund having been made, PLDT instituted with the Regional Trial
Court at Laguna a petition therefor against the Province and its Provincial
Treasurer, which petition was thereat docketed as Civil Case No. SC-3953.
In its decision of November 28, 2001, the trial court denied PLDTs petition,
thus:
WHEREFORE, the petition is denied. Petitioner PLDT is not exempt from
paying local franchise and business taxes to the Respondent Province.
Refund is denied. For failure to substantiate the claim for exemplary
damages and attorneys fees, the same is likewise denied.
100
SUPREME COURT REPORTS ANNOTATED
Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna
5.01.d. THE LOWER COURT ERRED IN NOT GIVING WEIGHT TO THE
RULING OF THE DEPARTMENT OF FINANCE, THROUGH ITS BUREAU
OF LOCAL GOVERNMENT FINANCE, THAT PETITIONER IS EXEMPT
FROM THE PAYMENT OF FRANCHISE AND BUSINESS TAXES
IMPOSABLE BY LOCAL GOVERNMENT UNITS UNDER THE LOCAL
GOVERNMENT CODE.
We note, quite interestingly, that except for the particular local government
units involved in the earlier case of PLDT vs. City of Davao 7 and the very
recent case of PLDT vs. City of Bacolod, et al.,8 the arguments presently
advanced by petitioner on the issues raised herein are but a mere reiteration
if not repetition of the very same arguments it has already raised in the two
(2) earlier PLDT cases. For sure, the errors presently assigned are
substantially the same as those in Davao and in Bacolod, all of which have
SO ORDERED.
been adequately addressed and passed upon by this Court in its decisions
therein as well as in its en banc Resolution in Davao.
In PLDT vs. City of Davao, and again in PLDT vs. City of Bacolod, et al., this
Court has interpreted Section 23 of Rep. Act No. 7925. There, we ruled that
Section 23 does not operate to exempt PLDT from the payment of franchise
tax. We quote what we have said in Davao and reiterated in Bacolod.
To begin with, tax exemptions are highly disfavored. The reason for this was
explained by this Court in Asiatic Petroleum Co. v. Llanes, in which it was
held:
101
_______________
7 See footnote # 1.
8 See footnote # 2.
101
9 Id., p. 780.
102
102
SUPREME COURT REPORTS ANNOTATED
xxx
xxx
The fact is that the term exemption in 23 is too general. A cardinal rule in
statutory construction is that legislative intent must be ascertained from a
consideration of the statute as a whole and not merely of a particular
provision. For, taken in the abstract, a word or phrase might easily convey a
meaning which is different from the one actually intended. A general
provision may actually have a limited application if read together with other
provisions. Hence, a consideration of the law itself in its entirety and the
proceedings of both Houses of Congress is in order.
xxx
xxx
xxx
R.A. No. 7925 is thus a legislative enactment designed to set the national
policy on telecommunications and provide the structures to implement it to
keep up with the technological advances in the industry and the needs of the
public. The thrust of the law is to promote gradually the deregulation of the
entry, pricing, and operations of all public telecommunications entities and
thus promote a level playing field in the telecommunications industry. There
is nothing in the language of 23 nor in the proceedings of both the House of
Representatives and the Senate in enacting R.A. No. 7925 which shows that
it contemplates the grant of tax exemptions to all telecommunications
entities, including those whose exemptions had been withdrawn by the LGC.
What this Court said in Asiatic Petroleum Co. v. Llanes applies mutatis
mutandis to this case: When exemption is claimed, it must be shown
indubitably to exist. At the outset, every presumption is against it. A well-
founded doubt is fatal to the claim. It is only when the terms of the
concession are too explicit to admit fairly of any
103
one and one-half per centum (1/2% [sic]) of all gross receipts from its
transactions while Smart is required to pay a tax of three percent (3%) on all
gross receipts from business transacted. Petitioners theory would require
that, to level the playing
104
104
SUPREME COURT REPORTS ANNOTATED
Indeed, both in their nature and in their effect there is no difference between
tax exemption and tax exclusion. Exemption is an immunity or privilege; it is
freedom from a charge or burden to which others are subjected. Exclusion,
on the other hand, is the removal of otherwise taxable items from the reach
of taxation, e.g., exclusions from gross income and allowable deductions.
Exclusion is thus also an immunity or privilege which frees a taxpayer from a
charge to which others are subjected. Consequently, the rule that tax
exemption should be applied in strictissimi juris against the taxpayer and
liberally in favor of the government applies equally to tax exclusions. To
construe otherwise the in lieu of all taxes provision invoked is to be
inconsistent with the theory that R.A. No. 7925, 23 grants tax exemption
because of a similar grant to Globe and Smart.12
As in Davao, PLDT presently faults the trial court for not giving weight to the
ruling of the BLGF which, to petitioners
_______________
106
SUPREME COURT REPORTS ANNOTATED
Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna
107
Under Rule 45 the reglementary period to appeal is fifteen (15) days from
notice of judgment or denial of motion for reconsideration. x x x For the writ
of certiorari under Rule 65 of the Rules of Court to issue, a petitioner must
show that he has no plain, speedy and adequate remedy in the ordinary
course of law against its perceived grievance. A remedy is considered plain,
speedy and adequate if it will promptly relieve the petitioner from the
injurious effects of the judgment and the acts of the lower court or agency. In
this case, appeal was not only available but also a speedy and adequate
remedy.
Labor Law; Salaries; Holiday Pay; Holiday pay is a legislated benefit
enacted as part of the Constitutional imperative that the State shall afford
protection to labor.Holiday pay is a legislated benefit enacted as part of
the Constitutional imperative that the State shall afford protection to
_______________
* THIRD DIVISION.
479
480
(c) As used in this Article, holiday includes: New Years Day, Maundy
Thursday, Good Friday, the ninth of April, the first of May, the twelfth of June,
the fourth of July, the thirtieth of November, the twenty-fifth and thirtieth of
December and the day designated by law for holding a general election,
which was amended by Executive Order No. 203 issued on June 30, 1987,
such that the regular holidays are now:
1.
New Years
Day January 1
2.
Maundy Thursday
Movable Date
3.
Good Friday
Movable Date
4.
Araw ng Kagitingan (Bataan
Corregidor Day)
April 9
5.
Labor Day
May 1
6.
Independence Day
June 12
7.
National Heroes Day Last
Sunday of August
8.
Bonifacio Day
November 30
9.
Christmas Day
December 25
10.
Rizal Day
December 30
In deciding in favor of the Bisig ng Asian Transmission Labor Union
(BATLU), the Voluntary Arbitrator held that Article 94 of the Labor Code
provides for holiday pay for every regular holiday, the computation of which
is determined by a legal formula which is not changed by the fact that there
are two holidays falling on one day, like on April 9, 1998 when it was Araw
ng Kagitingan and at
482
482
SUPREME COURT REPORTS ANNOTATED
the same time was Maundy Thursday; and that that the law, as amended,
enumerates ten regular holidays for every year should not be interpreted as
authorizing a reduction to nine the number of paid regular holidays just
because April 9 (Araw ng Kagitingan) in certain years, like 1993 and 1998, is
also Holy Friday or Maundy Thursday.
In the assailed decision, the Court of Appeals upheld the findings of the
Voluntary Arbitrator, holding that the Collective Bargaining Agreement (CBA)
between petitioner and BATLU, the law governing the relations between
them, clearly recognizes their intent to consider Araw ng Kagitingan and
Maundy Thursday, on whatever date they may fall in any calendar year, as
paid legal holidays during the effectivity of the CBA and that [t]here is no
condition, qualification or exception for any variance from the clear intent
that all holidays shall be compensated.5
The Court of Appeals further held that in the absence of an explicit provision
in law which provides for [a] reduction of holiday pay if two holidays happen
to fall on the same day, any doubt in the interpretation and implementation of
the Labor Code provisions on holiday pay must be resolved in favor of
labor.
By the present petition, petitioners raise the following issues:
I
_______________
5 Rollo at p. 48.
483
III
483
At the outset, it bears noting that instead of assailing the Court of Appeals
Decision by petition for review on certiorari under Rule 45 of the 1997 Rules
of Civil Procedure, petitioner lodged the present petition for certiorari under
Rule 65.
[S]ince the Court of Appeals had jurisdiction over the petition under Rule 65,
any alleged errors committed by it in the exercise of its jurisdiction would be
errors of judgment which are reviewable by timely appeal and not by a
special civil action of certiorari. If the aggrieved party fails to
484
484
SUPREME COURT REPORTS ANNOTATED
Asian Transmission Corporation vs. Court of Appeals
do so within the reglementary period, and the decision accordingly becomes
final and executory, he cannot avail himself of the writ of certiorari, his
predicament being the effect of his deliberate inaction.
The appeal from a final disposition of the Court of Appeals is a petition for
review under Rule 45 and not a special civil action under Rule 65 of the
Rules of Court, now Rule 45 and Rule 65, respectively, of the 1997 Rules of
485
6 San Miguel Corporation v. Court of Appeals, G.R. No. 146775, January 30,
2002, 375 SCRA 311, 315, citing National Irrigation Administration v. Court
of Appeals, G.R. No. 129169, November 17, 1999, 318 SCRA, 263-264.
7 CONST., Art. XIII, Sec. 3.
9 Vide Book V, Title I of Pres. Decree No. 1083, Code of Muslim Personal
Laws of the Philippines, (February 4, 1977) which recognizes the official
Muslim holidays.
10 Art. 94 of the Labor Code provides by way of exception retail and service
establishments regularly employing less than ten (10) workers.
Moreover, Sec. 11, Rule IV, Book III of the Omnibus Rules to Implement the
Labor Code provides that Nothing in the law or the rules shall justify an
employer in withdrawing or reducing any benefits, supplements or payments
for unworked regular holidays as provided in existing individual or collective
agreement or employer practice or policy.17
From the pertinent provisions of the CBA entered into by the parties,
petitioner had obligated itself to pay for the legal holidays as required by law.
Thus the 1997-1998 CBA incorporates the following provision:
_______________
486
486
15 Rollo at p. 49.
must be taken to mean exactly what it says.13 In the case at bar, there is
nothing in the law which provides or indicates that the entitlement to ten
days of holiday pay shall be reduced to nine when two holidays fall on the
same day.
16 Abella v. National Labor Relations Commission, G.R. No. 71812, July 20,
1987, 152 SCRA 140, 146.
Petition dismissed.
* SECOND DIVISION.
510
510
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
Same; Same; Change of Name; Civil Register; The name of the adoptee as
recorded in the civil register should be used in the adoption proceedings in
order to vest the court with jurisdiction to hear and determine the same.
The name of the adoptee as recorded in the civil register should be used in
the adoption proceedings in order to vest the court with jurisdiction to hear
and determine the same, and shall continue to be so used until the court
orders otherwise. Changing the given or proper name of a person as
recorded in the civil register is a substantial change in ones official or legal
name and cannot be authorized without a judicial order. The purpose of the
statutory procedure authorizing a change of name is simply to have,
wherever possible, a record of the change, and in keeping with the object of
the statute, a court to which the application is made should normally make
its decree recording such change.
Same; Same; Same; Actions; If a change in ones name is desired, this can
only be done by filing and strictly complying with the substantive and
procedural requirements for a special proceeding for change of name under
Rule 103 of the Rules of Court.The official name of a person whose birth
is registered in the civil register is the name appearing therein. If a change in
ones name is desired, this can only be done by filing and strictly complying
with the substantive and procedural requirements for a special proceeding
for change of name under Rule 103 of the Rules of Court, wherein the
sufficiency of the reasons or grounds therefor can be threshed out and
accordingly determined.
Same; Same; Same; Same; A petition for change of name is an independent
and discrete special proceeding, in and by itself, governed by its own set of
rulesa fortiori, it cannot be granted by means of any other proceeding.A
petition for change of name being a proceeding in rem, strict compliance
with all the requirements therefor is indispensable in order to vest the court
with jurisdiction for its adjudication. It is an independent and discrete special
proceeding, in and by itself, governed by its own set of rules. A fortiori, it
cannot be granted by means of any other proceeding. To consider it as a
mere incident or an offshoot of another special proceeding would be to
denigrate its role and significance as the appropriate remedy available under
our remedial law system.
Same; Same; Same; Same; It would be procedurally erroneous to employ a
petition for adoption to effect a change of name in the absence of the
corresponding petition for the latter relief at law.The
511
513
512
513
Republic vs. Hernandez
subvert the essence of the proceeding and connotes at least a reasonable
attempt at compliance with the Rules.The situation presented in this case
does not warrant exception from the Rules under the policy of liberal
construction thereof in general, and for change of name in particular, as
proposed by private respondents and adopted by respondent judge. Liberal
construction of the Rules may be invoked in situations wherein there may be
some excusable formal deficiency or error in a pleading, provided that the
same does not subvert the essence of the proceeding and connotes at least
a reasonable attempt at compliance with the Rules. Utter disregard of the
Rules cannot justly be rationalized by harking on the policy of liberal
construction.
and the adjudication of cases are matters of public policy. They are matters
of public order and interest which can in no wise be changed or
514
514
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
regulated by agreements between or stipulations by parties to an action for
their singular convenience.
Same; Same; Same; The rules and procedure laid down for the trial court
and the adjudication of cases are matters of public policy which can in no
wise be changed or regulated by agreements between or stipulations by
parties to an action for their singular convenience.The danger wrought by
non-observance of the Rules is that the violation of or failure to comply with
the procedure prescribed by law prevents the proper determination of the
questions raised by the parties with respect to the merits of the case and
makes it necessary to decide, in the first place, such questions as relate to
the form of the action. The rules and procedure laid down for the trial court
Same; Civil Register; The official name of a person is that given him in the
civil register.By Article 408 of the Civil Code, a persons birth must be
entered in the civil register. The official name of a person is that given him in
the civil register. That is his name in the eyes of the law. And once the name
of a person is officially entered in the civil register, Article 376 of the same
Code seals that identity with its precise mandate: no person can change his
name or surname without judicial authority. This statutory restriction is
premised on the interest of the State in names borne by individuals and
entities for purposes of identification.
Same; Same; Actions; Change of Name; The only way that the name of a
person can be changed legally is through a petition for change of name
under Rule 103 of the Rules of Court, and the only name that may be
changed is the true or official name recorded in the civil register.By reason
thereof, the only way that the name of person can be changed legally is
through a petition for change of name under Rule 103 of the Rules of Court.
For purposes of an application for change of name under Article 376 of the
Civil Code and correlatively implemented by Rule 103, the only name that
may be changed is the true or official name recorded in the civil register. As
earlier
515
Same; Same; Same; Same; Adoption; Parent and Child; While the right of a
natural parent to name the child is recognized, guaranteed and protected
under the law, the so-called right of an adoptive parent to re-name an
adopted child by virtue or as a consequence of adoption, even for the most
noble intentions and moving supplications, is unheard of in law and
consequently cannot be favorably con-sidered.While the right of a natural
parent to name the child is
516
516
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
recognized, guaranteed and protected under the law, the so-called right of
an adoptive parent to re-name an adopted child by virtue or as a
consequence of adoption, even for the most noble intentions and moving
supplications, is unheard of in law and consequently cannot be favorably
considered. To repeat, the change of the surname of the adoptee as a result
of the adoption and to follow that of the adopter does not lawfully extend to
or include the proper or given name. Furthermore, factual realities and legal
consequences, rather than sentimentality and symbolisms, are what are of
concern to the Court.
PETITION for certiorari to review a decision of the Regional Trial Court of
Pasig City, Br. 158.
Indeed, whats in a name, as the Bard of Avon has written, since a rose by
any other name would smell as sweet?
This could well be the theme of the present appeal by certiorari which
challenges, on pure questions of law, the order of the Regional Trial Court,
Branch 158, Pasig City, dated September 13, 19941 in JDRC Case No.
2964. Said court is faulted for having approved the petition for adoption of
Kevin Earl Bartolome Moran and simultaneously granted the prayer therein
for the change of the first name of said adoptee to Aaron Joseph, to
complement the surname Munson y Andrade which he acquired consequent
to his adoption.
tional facts required by Rule 99 of the Rules of Court for adoption, their
qualifications as and fitness to be adoptive parents, as well as the
circumstances under and by reason of which the adoption of the
aforenamed minor was sought. In the very same petition, private
respondents prayed for the change of the first name of said minor adoptee
to Aaron Joseph, the same being the name with which he was baptized in
keeping with religious tradition, and by which he has been called by his
adoptive family, relatives and friends since May 6, 1993 when he arrived at
private respondents residence.3
At the hearing on April 18, 1994, petitioner opposed the inclusion of the relief
for change of name in the same petition for adoption. In its formal opposition
dated May 3, 1995,4 petitioner reiterated its objection to the joinder of the
petition for adoption and the petitions for change of name in a single
proceeding, arguing that these petition should be conducted and pursued as
two separate proceedings.
After considering the evidence and arguments of the contending parties, the
trial court ruled in favor of herein private respondents in this wise:
WHEREFORE, minor child Kevin Earl Bartolome Moran is freed from all
legal obligations of obedience and maintenance with respect to his natural
parents, and for all legal intents and purposes shall be known as Aaron
Joseph Munson y Andrade, the legally adopted child of Van Munson and
Regina Munson effective upon the filing of the petition on March 10, 1994.
As soon as the decree of adoption becomes final and executory, it shall be
recorded in the Office of the Local Civil Registrar of Pasig, Metro Manila
pursuant to Section 8, Rule 99 and Section 6, Rule 103, respectively, of the
Rules of Court, and shall be annotated in the record of birth of the adopted
child, which in this case is in Valenzuela, Metro Manila, where the child was
born. Likewise, send a copy of this Order to the National Census and
Statistics Office, Manila, for its appropriate action consisten(t) herewith.5
517
_______________
517
The facts are undisputed. On March 10, 1994, herein private respondent
spouses, Van Munson y Navarro and Regina Munson y Andrade, filed a
petition2 to adopt the minor Kevin Earl Bartolome Moran, duly alleging
therein the jurisdic_______________
518
_______________
518
7 See Art. 188, Family Code; Arts. 32-38, Child and Youth Welfare Code;
Secs. 1-5, Rule 99, Rules of Court.
519
It has been said all too often enough that the factual findings of the lower
court, when sufficiently buttressed by legal and evidential support, are
accorded high respect and are binding and conclusive upon this Court.9
Accordingly, we fully uphold the propriety of that portion of the order of the
court below granting the petition for adoption.
Mr. and Mrs. Munson are very religious, responsible, mature and friendly
individuals. They are found physically healthy, mentally fit, spiritually and
financially capable to adopt Kevin Earl Moran a.k.a. Aaron Joseph.
The only legal issues that need to be resolved may then be synthesized
mainly as follows: (1) whether or not the court a quo erred in granting the
prayer for the change of the registered proper or given name of the minor
adoptee embodied in the petition for adoption; and (2) whether or not there
was lawful ground for the change of name.
Mr. and Mrs. Munson have provided AJ with all his needs. They unselfishly
share their time, love and attention to him. They are ready and willing to
continuously provide him a happy and secure home life.
Aaron Joseph, on the other hand, is growing normally under the care of the
Munsons. He had comfortably settled in his new environment. His stay with
the Munsons during the
different from and are not related to each other, being respectively governed
by distinct sets of law and rules. In order to be entitled to both reliefs,
namely, a decree of adoption and an authority to change the given or proper
name of the adoptee, the respective proceedings for each must be instituted
separately, and the substantive and procedural requirements therefor under
Articles 183 to 193 of
_______________
520
10 Rollo, 18-19.
520
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
the Family Code in relation to Rule 99 of the Rules of Court for adoption,
and Articles 364 to 380 of the Civil Code in relation to Rule 103 of the Rules
of Court for change of name, must correspondingly be complied with.10
A perusal of the records, according to petitioner, shows that only the laws
and rules on adoption have been observed, but not those for a petition for
change of name.11 Petitioner further contends that what the law allows is
the change of the surname of the adoptee, as a matter of right, to conform
with that of the adopter and as a natural consequence of the adoption thus
granted. If what is sought is the change of the registered given or proper
name, and since this would involve a substantial change of ones legal
name, a petition for change of name under Rule 103 should accordingly be
instituted, with the substantive and adjective requisites therefor being
conformably satisfied.12
11 Ibid., 20-23.
12 Ibid., 16.
13 Ibid., 63, 65-66.
14 Ibid., 24-27.
521
Furthermore, the change of name of the child from Kevin Earl Bartolome to
Aaron Joseph should not be treated strictly, it appearing that no rights have
been prejudiced by said change of name. The strict and meticulous
observation of the requisites set forth by Rule 103 of the Rules of Court is
indubitably for the purpose of preventing fraud, ensuring that neither State
nor any third person should be prejudiced by the grant of the petition for
change of name under said rule, to a petitioner of discernment.
522
The first name sought to be changed belongs to an infant barely over a year
old. Kevin Earl has not exercised full civil rights nor engaged in any
contractual obligations. Neither can he nor petitioners on his behalf, be
deemed to have any immoral, criminal or illicit purpose for seeking said
cha(n)ge of name. It stands to reason that there is no way that the state or
any person may be so prejudiced by the action for change of Kevin Earls
first name. In fact, to obviate any possible doubts on the intent of petitioners,
the prayer for change of name was caused to be published together with the
petition for adoption.16
Clearly, the law allows the adoptee, as a matter of right and obligation, to
bear the surname of the adopter, upon issuance of the decree of adoption. It
is the change of the adoptees surname to follow that of the adopter which is
the natural and necessary consequence of a grant of adoption and must
specifically be contained in the order of the court, in fact, even if not prayed
for by petitioner.
Art. 189 of the Family Code enumerates in no uncertain terms the legal
effects of adoption:
(1) For civil purposes, the adopted shall be deemed to be a legitimate child
of the adopters and both shall acquire the reciprocal rights and obligations
arising from the relationship of parent and child, including the right of the
adopted to use the surname of the adopters;
However, the given or proper name, also known as the first or Christian
name, of the adoptee must remain as it was originally registered in the civil
register. The creation of an adoptive relationship does not confer upon the
adopter a license to change the adoptees registered Christian or first name.
The automatic change thereof, premised solely upon the adoption thus
granted, is beyond the purview of a decree of adoption. Neither is it a mere
incident in nor an adjunct of an adoption proceeding, such that a prayer
therefor furtively inserted in a petition for adoption, as in this case, cannot
properly be granted.
15 Ibid., 70-71.
The name of the adoptee as recorded in the civil register should be used in
the adoption proceedings in order to vest the court with jurisdiction to hear
and determine the same,17 and shall continue to be so used until the court
orders otherwise. Changing the given or proper name of a person as
recorded in the civil register is a substantial change in ones official or legal
name and cannot be authorized without a judicial order. The purpose of the
statutory procedure authorizing a change of name is simply to have,
wherever possible, a record of the change, and in keeping with the object of
the statute, a court to which the application is made should normally make
its decree recording such change.18
_______________
(2) The parental authority of the parents by nature over the adopted shall
terminate and be vested in the adopters, except that if the adopter is the
spouse of the parent by nature of the adopted, parental authority over the
adopted shall be exercised jointly by both spouses; and
_______________
522
17 Cruz vs. Republic, L-20927, July 26, 1966, 17 SCRA 693.
18 See Art. 412, Civil Code; Re Ross. 8 Cal 2d 608, 67 P2d 94, 110 ALR
217.
523
_______________
19 Yu Chi Han vs. Republic, L-22040, November 29, 1965, 15 SCRA 454;
Cruz vs. Republic, supra, fn. 17; Republic vs. Taada, etc., et al., L-31563,
November 29, 1971, 42 SCRA 419; Secan Kok vs. Republic, L-27621,
August 30, 1973, 52 SCRA 322.
523
524
524
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
special proceeding would be to denigrate its role and significance as the
appropriate remedy available under our remedial law system.
The Solicitor General correctly points out the glaring defects of the subject
petition insofar as it seeks the change of name of the adoptee,20 all of which
taken together cannot but lead to the conclusion that there was no petition
sufficient in form and substance for change of name as would rightfully
deserve an order therefor. It would be procedurally erroneous to employ a
petition for adoption to effect a change of name in the absence of the
corresponding petition for the latter relief at law.
Neither can the allowance of the subject petition, by any stretch of
imagination and liberality, be justified under the rule allowing permissive
joinder of causes of action. Moreover, the reliance by private respondents on
the pronouncements in Briz vs. Briz, et al.,21 and Peyer vs. Martinez, et
al.22 is misplaced. A restatement of the rule and jurisprudence on joinder of
causes of action would, therefor, appear to be called for.
By a joinder of actions, or more properly, a joinder of causes of action, is
meant the uniting of two or more demands or rights of action in one action;
the statement of more than one cause of action in a declaration.23 It is the
union of two or more civil causes of action, each of which could be made the
basis of a separate suit, in the same complaint, declaration or petition. A
between the parties, or are for demands for money or are of the same
nature and character.
As can easily be inferred from the above definitions, a party is generally not
required to join in one suit several distinct causes of action. The joinder of
separate causes of action, where allowable, is permissive and not
mandatory in the ab-
_______________
20 Rollo, 21-22.
21 43 Phil. 763 (1922).
_______________
22 88 Phil. 72 (1951).
525
25 Ibid., id., Sec. 85, 778.
VOL. 253, FEBRUARY 9, 1996
525
526
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
though the courts have not succeeded in giving a standard definition of the
terms used or in developing a rule of universal application. The dominant
We however submit that these citations are non sequitur. In both cases, the
fact of intimacy and relatedness of the issues is so pronounced. In Peyer, an
application to pronounce the husband an absentee is obviously intertwined
with the action to transfer the management of conjugal assets to the wife. In
Briz, an action for declaration of heirship was deemed a clear condition
precedent to an action to recover the land subject of partition and distribution
pro-
_______________
In Nabus vs. Court of Appeals, et al.,35 the Court clarified the rule on
permissive joinder of causes of action:
33 Rollo, 18-19.
528
_______________
528
34 Ibid., 86-88.
35 G.R. No. 91670, February 7, 1991, 193 SCRA 732; Baldovi vs. Sarte, 36
Phil. 550 (1917). Cf. Hicks vs. Hilario, et al., 40 Phil. 576 (1919) and
Insurance Company of North America vs. United Stated Lines Co., et al., L21839, April 30, 1968, 23 SCRA 438.
529
The situation presented in this case does not warrant exception from the
Rules under the policy of liberal construction thereof in general, and for
change of name in particular, as proposed by private respondents and
adopted by respondent judge. Liberal construction of the Rules may be
invoked in situations wherein there may be some excusable formal
deficiency or error in a pleading, provided that the same does not subvert
the essence of the proceeding and connotes at least a reasonable attempt
at compliance with the Rules. Utter disregard of the Rules cannot justly be
rationalized by harking on the policy of liberal construction.
The Court is not impervious to the frustration that litigants and lawyers alike
would at times encounter in procedural bureaucracy but imperative justice
requires correct observance of indispensable technicalities precisely
designed to ensure its proper dispensation.36 It has long been recognized
that strict compliance with the Rules of Court is indispensable for the
prevention of needless delays and for the orderly and expeditious dispatch
of judicial business.37
Procedural rules are not to be disdained as mere technicalities that may be
ignored at will to suit the convenience of a party. Adjective law is important in
ensuring the effective enforcement of substantive rights through the orderly
and speedy administration of justice. These rules are not intended
_______________
36 Young vs. Ombudsman, G.R. No. 110736, December 27, 1993, 228
SCRA 718.
37 Villanueva vs. Court of Appeals, et al., G.R. No. 99357, January 27,
1992, 205 SCRA 537.
x x x (T)hey are required to be followed except only when for the most
persuasive of reasons they may be relaxed to relieve a litigant of an injustice
not commensurate with the degree of his thoughtlessness in not complying
with the procedure prescribed.
_______________
530
530
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
38 Santos vs. Court of Appeals, et al., G.R. No. 92862, July 4, 1991, 198
SCRA 806; Philippine National Construction Corporation vs. Court of
Appeals, et al., G.R. No. 104437, December 17, 1993, 228 SCRA 565.
39 Vasco vs. Court of Appeals, et al., L-46763, February 28, 1978, 81 SCRA
762.
40 L-44642, February 20, 1989, 170 SCRA 367. See also Edra vs.
Intermediate Appellate Court, et al., G.R. No. 75041, November 13, 1989,
179 SCRA 344.
531
41 Alonso vs. Villamor, 16 Phil. 315 (1910); Republic vs. Court of Appeals, et
al., G.R. No. 56077, February 28, 1985, 135 SCRA 165; Yong Chan Kim vs.
People, et al., G.R. No. 84719, January 25, 1991, 193 SCRA 344; Bank of
America, NT & SA vs. Gerochi, Jr., etc., et al., G.R. 73210, February 10,
1994, 230 SCRA 9; Buan, et al. vs. Court of Appeals, et al., G.R. No.
101614, August 17, 1994, 235 SCRA 424.
532
532
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
procedure laid down for the trial court and the adjudiation of cases are
matters of public policy.42 They are matters of public order and interest
which can in no wise be changed or regulated by agreements between or
stipulations by parties to an action for their singular convenience.43
In Garcia vs. Republic,44 we are reminded of the definiteness in the
application of the Rules and the importance of seeking relief under the
appropriate proceeding:
x x x The procedure set by law should be delimited. One should not confuse
or misapply one procedure for another lest we create confusion in the
application of the proper remedy.
Respondent judges unmindful disregard of procedural tenets aimed at
achieving stability of procedure is to be deplored. He exceeded his
prerogatives by granting the prayer for change of name, his order being
unsupported by both statutory and case law. The novel but unwarranted
manner in which he adjudicated this case may be characterized as a
regrettable abdication of the duty to uphold the teachings of remedial law
and jurisprudence.
II. Petitioner avers that it was error for the lower court to grant the petition for
change of name without citing or proving any lawful ground. Indeed, the only
justification advanced for the change of name was the fact of the adoptees
baptism under the name Aaron Joseph and by which he has been known
since he came to live with private respondents.45
Private respondents, through a rather stilted ratiocination, assert that upon
the grant of adoption, the subject minor adoptee ipso facto assumed a new
identification and designation, that is, Aaron Joseph which was the name
given to him during the baptismal rites. Allowing the change of his first name
as prayed for in the petition, so they claim, merely
_______________
xxx
The given name of the minor was Kevin Earl, a name given for no other
purpose than for identification purposes in a birth certificate by a woman
who had all intentions of giving him away. The naming of the minor as Aaron
Joseph by petitioners upon the grant of their petition for adoption is symbolic
of naming the minor at birth.47
We cannot fathom any legal or jurisprudential basis for this attenuated ruling
of respondent judge and must thus set it aside.
It is necessary to reiterate in this discussion that a persons name is a word
or combination of words by which he is known and identified, and
distinguished from others, for the convenience of the world at large in
addressing him, or in speaking of or dealing with him. It is both of personal
as well as public interest that every person must have a name. The name of
an individual has two parts: the given or proper name and the surname or
family name. The given or proper name is that which is given to the
individual at birth or at baptism, to distinguish him from other individuals. The
surname or family name is that which identifies the family to which he
belongs and is continued from parent to child. The given name may be freely
selected by the parents for the
_______________
533
Republic vs. Hernandez
confirms the designation by which he is known and called in the community
in which he lives. This largely echoes the opinion of the lower court that
naming the child Aaron Joseph was symbolic of naming him at birth, and
that they, as adoptive parents, have as much right as the natural parents to
freely select the first name of their adopted child.46
The lower court was sympathetic to herein private respondents and ruled on
this point in this manner:
As adoptive parents, petitioner like other parents may freely select the first
name given to his/her child as it is only the surname to which the child is
entitled that is fixed by law. x x x.
46 Ibid., 67-68.
47 Ibid., 39.
534
534
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
child, but the surname to which the child is entitled is fixed by law.48
By Article 408 of the Civil Code, a persons birth must be entered in the civil
register. The official name of a person is that given him in the civil register.
That is his name in the eyes of the law.49 And once the name of a person is
officially entered in the civil register, Article 376 of the same Code seals that
identity with its precise mandate: no person can change his name or
surname without judicial authority. This statutory restriction is premised on
the interest of the State in names borne by individuals and entities for
purposes of identification.50
By reason thereof, the only way that the name of person can be changed
legally is through a petition for change of name under Rule 103 of the Rules
of Court.51 For purposes of an application for change of name under Article
376 of the Civil Code and correlatively implemented by Rule 103, the only
name that may be changed is the true or official name recorded in the civil
register. As earlier mentioned, a petition for change of name being a
proceeding in rem, impressed as it is with public interest, strict compliance
with all the requisites therefor in order to vest the court with jurisdiction is
essential, and failure therein renders the proceedings a nullity.52
It must likewise be stressed once again that a change of name is a privilege,
not a matter of right, addressed to the
_______________
49 Chomi vs. Local Civil Registrar of Manila, 99 Phil. 1004 (1956); Ng Yao
Siong vs. Republic, L-20306, March 31, 1966, 16 SCRA 483.
Contrarily, a petition for change of name grounded on the fact that one was
baptized by another name, under which he has been known and which he
used, has been denied inasmuch as the use of baptismal names is not
sanctioned.55 For, in truth, baptism is not a condition sine qua non to a
change of name.56 Neither does the fact that the petitioner has been using
a different name and has become known by it constitute
50 Chiu Hap Chiu vs. Republic, L-20018, April 30, 1966, 16 SCRA 864.
_______________
53 Ong Pen Oan vs. Republic, 102 Phil. 460 (1957); Nacionale vs. Republic,
L-18067, April 29, 1966, 16 SCRA 636; Yu vs. Republic, L-20874, May 25,
1966, 17 SCRA 253; Calderon vs. Republic, L-18127, April 5, 1967, 19
SCRA 721.
54 Republic vs. Court of Appeals, et al., G.R. No. 97906, May 21, 1992, 209
SCRA 189, 199 and cases therein cited. See also Republic vs. Avila, etc., et
al., L-33131, May 30, 1983, 122 SCRA 483.
(a)s adoptive parents, petitioners like other parents may freely select the
first name given to his/her child as it is only the surname to which the child is
entitled that is fixed by law. x x x.
The given name of the minor was Kevin Earl, a name given for no other
purpose than for identification purposes in a birth certificate by a woman
who had all the intentions of giving him away. The naming of the minor as
Aaron Joseph by petitioners upon grant
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536
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
proper and reasonable cause to legally authorize a change of name.57 A
name given to a person in the church records or elsewhere or by which he is
known in the communitywhen at variance with that entered in the civil
registeris unofficial and cannot be recognized as his real name.58
The instant petition does not sufficiently persuade us to depart from such
rulings of long accepted wisdom and applicability. The only grounds offered
to justify the change of name prayed for was that the adopted child had been
baptized as Aaron Joseph in keeping with the religious faith of private
respondents and that it was the name by which he had been called and
known by his family, relatives and friends from the time he came to live with
private respondents.59 Apart from suffusing their pleadings with
sanctimonious entreaties for compassion, none of the justified grounds for a
change of name has been alleged or established by private respondents.
The legal bases chosen by them to bolster their cause have long been
struck down as unavailing for their present purposes. For, to allow the
adoptee herein to use his baptismal name, instead of his name registered in
the civil register, would be to countenance or permit that which has always
been frowned upon.60
The earlier quoted posturing of respondent judge, as expressed in his
assailed order that
57 Ong Pen Oan vs. Republic, supra, fn. 53; Grant vs. Republic, L-23609,
March 31, 1966, 16 SCRA 517.
58 Ng Yao Siong vs. Republic, supra, fn. 49.
59 Annex B, Petition; Rollo, 44, 67.
60 Cruz vs. Republic, supra, fn. 17.
537
The liberality with which this Court treats matters leading up to adoption
insofar as it carries out the beneficent purposes of adoption and ensures to
the adopted child the rights and privileges arising therefrom, ever mindful
that the paramount consideration is the overall benefit and interest of the
adopted child,62 should be understood in its proper context. It should not be
misconstrued or misinterpreted to extend to inferences beyond the
contemplation of law and jurisprudence.
The practically unrestricted freedom of the natural parent to select the
proper or given name of the child presupposes that no other name for it has
theretofore been entered in the civil register. Once such name is registered,
regardless of the reasons for such choice and even if it be solely for the
purpose of identification, the same constitutes the official name. This
effectively authenticates the identity of the person and must remain
unaltered save when, for the most compelling reasons shown in an
appropriate proceeding, its change may merit judicial approval.
While the right of a natural parent to name the child is recognized,
guaranteed and protected under the law, the socalled right of an adoptive
parent to re-name an adopted child by virtue or as a consequence of
adoption, even for the most noble intentions and moving supplications, is
unheard of in law and consequently cannot be favorably considered. To re_______________
538
61 Rollo, 31-32.
538
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
Jurisprudence on the Civil Code, Vol. I, 1987 edition, page 721). In the
second case, however, as in the case at bar, private respondents, in their
capacities as adopters, cannot claim a right to name the minor adoptee after
such right to name the child had already been exercised by the natural
parent. Adopting parents have not been conferred such right by law, hence,
the right asserted by private respondents herein remains but illusory.
Renaming the adoptee cannot be claimed as a right. It is merely a privilege
necessitating judicial consent upon compelling grounds.61
62 Republic vs. Court of Appeals, et al., G.R. No. 92326, January 24, 1992,
205 SCRA 356.
539
peat, the change of the surname of the adoptee as a result of the adoption
and to follow that of the adopter does not lawfully extend to or include the
proper or given name. Furthermore, factual realities and legal
consequences, rather than sentimentality and symbolisms, are what are of
concern to the Court.
Finally, it is understood that this decision does not entirely foreclose and is
without prejudice to, private respondents privilege to legally change the
proper or given name of their adopted child, provided that the same is
exercised, this time, via a proper petition for change of name. Of course, the
grant thereof is conditioned on strict compliance with all jurisdictional
requirements and satisfactory proof of the compelling reasons advanced
therefor.
WHEREFORE, on the foregoing premises, the assailed order of respondent
judge is hereby MODIFIED. The legally adopted child of private respondents
shall henceforth be officially known as Kevin Earl Munson y Andrade unless
a change thereof is hereafter effected in accordance with law. In all other
respects, the order is AFFIRMED.
SO ORDERED.
Romero, Puno and Mendoza, JJ., concur.
Order affirmed with modification.
Notes.A witness who has two names and adopts the name of his wife is
not credible. (People vs. Buendia, 210 SCRA 531 [1992])
A petition to resume the use of maiden name filed by petitioner before the
respondent Court is a superfluity and unnecessary proceeding since the law
requires her to do so when her former husband gets married to another
woman after obtaining a decree of divorce from her in accordance with
Muslim laws. (Yasin vs. Judge, Sharia District Court, 241 SCRA 606 [1995])
o0o